Some 39 states in America have banned same-sex marriage (SSM) in their jurisdictions, many with large popular majorities. Other states have the definition of natural marriage on their books. Only 5 states and the District of Columbia have adopted SSM.

            California banned SSM in the referendum on Proposition 8 with a narrower majority (52% of votes against 48%) in May 2008. That ban was a response to an earlier decision by unelected judges of the state’s Supreme Court to license same-sex marriages. On August 4 of this year another unelected judge, Federal District Court Chief Judge Vaughn Walker of San Francisco, overturned the California ban, declaring it to be unconstitutional.

            At the time of writing, the ban still remains, due to a decision by a three-judge panel of the United States Court of Appeals for the Ninth Circuit to stay the decision until after they hear arguments on an appeal, scheduled for early December. That Court will again consist of three judges selected at random out of 29 judges.

            If the case proceeds via the December 2010 Appeals Court to the United States Supreme Court, and a majority of the Supreme Court judges agree with Judge Walker, then all legislation banning SSM across the country could be deemed unconstitutional, including in states which have approved the bans already.

Federal-state jurisdictions

            The federal government has not attempted to establish its own definition of marriage. Any marriage recognized by a state was recognized by the federal government, even if that marriage was not recognized by one or more other states. With the passage of the Defense of Marriage Act ("DOMA") in 1996, however, a marriage was explicitly defined as a union of one man and one woman for the purposes of federal law.

            DOMA has been under challenge in the federal courts, and on July 8, 2010, Judge Joseph Tauro of the District Court of Massachusetts held that the denial of federal rights and benefits to lawfully married Massachusetts same-sex couples under the DOMA is unconstitutional, under the Tenth Amendment to the US Constitution. This applies only to Massachusetts but so far its application there has been stayed.

            Marriage has been recognized as an important public institution deserving of federal and state support since the beginning of the American Republic. According to the federal Government Accountability Office (GAO), more than 1,138 rights and protections are conferred to U.S. citizens upon marriage by the federal government; areas affected include Social Security benefits, veterans' benefits, health insurance, Medicaid, hospital visitation, estate taxes, retirement savings, pensions, family leave, and immigration law.

            Many aspects of marriage law affecting the day to day lives of inhabitants of the United States are determined by the states, not the federal government. The federal Defense of Marriage Act does not prevent individual states from defining marriage as they see fit.

            Recognition of same-sex marriages would not in itself endanger either federal or state rights and protections. Rather it would extend these benefits to include “gay” liaisons.

Several features of the California decision are of grave concern to many Americans:

1.         First, Judge Walker’s ruling is another example of raw judicial activism whereby unelected judges overrule measures which have the support of a majority of the populace. Today this is a common occurrence in the US and Canada. It seriously undermines democracy and weakens the elected legislative authority in both countries.

            Three of the five American states that have adopted SSM did so as a result of a court ruling (Connecticut, Iowa, Massachusetts). In the other two states (New Hampshire and Vermont), plus the Washington District of Columbia, it came through a vote in their respective legislatures.

2.         In his 138-page ruling, “Perry vs. Schwarzenegger,” Judge Walker ruled that California’s constitutional amendment defining marriage as the union of a man and woman is unconstitutional, because it excludes same-sex unions.

            This ruling invalidates the ballot system and therefore may be interpreted as a direct attack of the democratic system. The ban was supported by over 7 million voters who comprised 52% of ballots cast.

3.         The fundamental arguments of Judge Walker’s ruling are those employed by the “gay” community worldwide, namely the notion that SSM is a human “right;” that it must be recognized as one of equal value to traditional marriage; and that non-acceptance is the result of irrational homophobia—which must be crushed.

            Judge Walker himself is a practicing homosexual. He struck down Proposition 8 on the basis that it violated the equal protection and due process clauses of the 14^th Amendment of the United States Constitution. This amendment was passed after the American Civil War when slaves regained their civil rights including the right to freely marry.

Legal critics of the ruling

1. Opponents argue that there is nothing about marriage in the US constitution and therefore a federal judge cannot declare it unconstitutional. Under the 10^th Amendment whatever is not explicitly assigned to the Executive branch falls under the jurisdiction of he individual states, including therefore, marriage laws.

           Changing the definition of marriage from “one man and one woman” to “any two persons” (as, for example, in Canada) will greatly weaken the institution in law as well as in the mind of people.

2.       Marriage is recognized as a public institution, because it brings together a man and a woman for the reproduction of the human race and keeping them together to raise the children produced by their union. Same-sex marriage cannot fulfill this role and therefore endangers the value of the institution.

3. The August 4 ruling is the imposition of one man’s personal and distorted view overthrowing a tradition of direct democracy, accompanied by much bullying by a tiny minority (one percent of the population) and inciting and directly threatening violence against those who oppose same-sex “marriage.” Judge Walker found, without evidence, that voters who supported Proposition 8 acted out of bigotry.

Other commentators have noted that:

4. “It [the ruling] will overturn, if upheld, every single state definition of marriage, every single initiative in which voters have their say, and in every state that has defined marriage as the union of a man and a woman,… and impose a same-sex marriage regime upon this country…” (Brian Brown, President, National Organization for Marriage)

5. It will reduce marriage “to a government registry of friendships” (Jennifer Roback Morse, of the Ruth Institute)

6. It is “a strike at the heart of our representative democracy.” (Wendy Wright, Concerned Women for America)

7. “Marriage is more fundamental and essential to the well-being of society then perhaps any other institution. It is simply unimaginable that the court could now claim a conflict between marriage and the constitution.” (Archbishop Joseph Kurtz, U.S. Conference of Catholic Bishops)

8. “This judge…has taken away our right to vote for marriage as one man and one woman, using specious and outrageous comparisons between same sex unions and interracial marriage.” (Black leader Bishop George McKinney of the Church of God in Christ)

9. This judge described the “ability to marry” as a fundamental right that cannot be denied.… This is complete nonsense. Every human society in history has placed restrictions on the “ability to marry.” You can’t marry your sister or seven people at once.” (Prof. Robert George, August 6, 2010)

10. Judge Walker cites documents from various church bodies, including the Vatican’s 2003 document which opposes giving legal recognition to unions between homosexual persons. This is proof, the judge claims, that religion is bad for society.

How did supporters of ‘gay marriage’ react?

            The following thoughts are taken from the Canadian daily newspaper, the Toronto Globe and Mail. Its editorial of August 6, was entitled. “The Constitution speaks.” (Editor: please note that Canada’s Parliament adopted SSM in 2005; the pro-homosexual Globe was its staunchest supporter; and, as noted above under No. 1 the American constitution does not mention marriage)

Here are the editorial observations:

             “Judges are occasionally called on to stand up against the will of the people, when the people act as bullies. That is what the people of California did two years ago in voting narrowly in support of a gay marriage ban… This week Judge Vaughn Walker stood up to the bullies, saying that no rational basis exists for denying gay people the right to marry one another.”

            The editorial goes on to hail Judge Walker for being the first to affirm the right to gay marriage under the U.S. constitution; for ruling that “to marry a person of one’s choice is a basic human right;” that ballot questions that invite discrimination against minorities are illegal; that there is no compelling state interest to ban gay marriage; that “tradition alone can not form the rational basis for a law;” that the current law doesn’t protect the institution of marriage; it does not protect children because gay people can already adopt them or act as foster parents; there is no evidence that children raised by gay couples are maladjusted; and that the whole (2008) campaign was based on moral and religious scare-mongering, especially the fear that children would become gay if exposed to same-sex marriage.

            The editorial concludes with Judge Walker’s declaration that opposition to gay marriage is the same as opposition to inter-racial marriage which was “abandoned by forty-one states after the American civil war and the emancipation of the slaves because it was “a despicable form of kowtowing to popular prejudice that courts put an end to.”

             “Now they (the judges) are called on to end the bar to gay marriage.… The constitution is being heard. It speaks louder than intolerance.”

            Why summarize this blast? Because it is the hardnosed answer of “gay” life supporters who have lived already for five years under a legal same-sex regime.

            Every single traditional argument is set on its head. The majority are the bullies, not the minority “gays.” “Gays” are born that way just like people of colour. They have a “right” to their lifestyle which must be acknowledged by the state, by society, by the public and which must be taught in all the schools, public and private, as normal, beautiful and beneficent. Opposition to the homosexual lifestyle is discrimination and homophobia and must be crushed. Religion is both dangerous and evil.

            And yes, your Grace, Archbishop Joseph Kurtz, it is not unimaginable that he Culture of Death will see victory because of what the courts are doing and because of what Catholics are doing and not doing. For a practical application of Judge Walker’s theories in Canada, please see the article “McGuinty’s poison pill for schools.” (C.I., Sept. 2010 and on our website posted August 16, 2010).

Final points

Why should society reject SSM?

1.         It is against the will of God;

2.         Its ideology is destructive of society;

3.         It hates religion, especially Christianity and, in particular, Catholicism.

How should society fight SSM?

1.         By prayer;

2.         By publicly defending and championing Judeo-Christian ethics against atheists, relativists, pagans and secularists;

3.         By Catholics defending and explaining every aspect of Catholic moral teaching and re-evangelizing their own parishes and co-religionists;

4.         By fighting back with every legal means.

What is the most foolish thing a citizen can do?

            By shrugging your shoulders and thinking SSM will not affect you, your family or your children.

Sources: Manhattan Declaration, Aug. 6; Google; Wikipedia; LifeSiteNews bulletins, August 2010; Globe & Mail, Aug. 5 & 6, The Toronto Star, Aug. 4; Metro News, Aug. 13; United Families.org, Aug. 17; Zenit.org, Aug. 22.

Father Alphonse de Valk is the publisher and editor of the monthly Catholic Insight magazine out of Toronto, Ontario, Canada. For subscriptions, see: http://catholicinsight.com/online/subscribe.shtml