Who’s On First … First?: Do We Need a Marriage Amendment?

(Originally printed in the Winter 2006 Issue of the MCOI Journal)

Since the time of the Tower of Babel, when God confused the languages of men on Earth, there has been a great language problem to overcome. And, any of you who watch those migraine inducing, political-debating shows on television know that even if people speak the same language, they might not “speak the same language.” There is a human problem of communication that often goes way beyond Spanish vs. English or Russian vs. Swahili. The problem, as we see it, is often “misunderestimated”—to borrow a term coined by our President.

There is a famous comedy routine performed by Bud Abbott and Lou Costello called “Who’s on First?” It is a classic piece that draws its humor from the idea of human miscommunication. Two guys were talking about the same thing, a baseball team. They were even using the same words, but no true communication resulted because they held differing understandings of those words. To Bud Abbott, “Who” is a personal, proper noun—someone’s name. To Lou Costello, “Who” is a question.

Costello: You know the fellows’ names?
Abbott: Certainly!
Costello: Well, then, who’s on first?
Abbott: Yes!
Costello: I mean the fellow’s name!
Abbott: Who!
Costello: The guy on first!
Abbott: Who!
Costello: The first baseman!
Abbott: Who!
Costello: The guy playing first!
Abbott: Who is on first!
Costello: Now whaddya askin’ me for?
Abbott: I’m telling you, Who is on first.
Costello: Well, I’m asking YOU, who’s on first!
Abbott: That’s the man’s name.
Costello: That’s who’s name?
Abbott: Yes.
Costello: Well, go ahead and tell me.
Abbott: Who.
Costello: The guy on first.
Abbott: Who!
Costello: The first baseman.
Abbott: Who is on first!

The skit continues on a ways, but you get the drift … What we have here is a failure to communicate.

The Need for the Creed

In comedy, being “definitionally challenged” can be humorous. In real life, however, it can have devastating effects. The various church creeds came into existence in response to false teachers corrupting Christianity by imbuing the words of the faith with new definitions. The result of these new meanings caused great confusion and a large number of “shipwrecked” believers. The creeds were restatements and reaffirmations of the definitions that had been held and taught from the beginning. The first recorded creed we have is contained in 1 Corinthians 15:1-4 and was given to bring clarity to the word Gospel as well as to record the meaning “for the ages.” We get a sense of how false teachers had co-opted this term because the Apostle Paul spends the balance of chapter 15 focusing on one aspect of this definition: The Resurrection. He goes from the specific statement that “He [Christ] was raised on the third day, according to the Scriptures …,” to the general concept of Resurrection, to the explanation that the Resurrection was of the physical body—as opposed to some notion of a “spiritual” resurrection (as the Greeks held in that day, and as Jehovah’s Witnesses, and other heretical groups hold today). Paul was very clear that none of this teaching on the Resurrection was new or fabricated by him. It is what he had received from God, what he had preached, and what they previously had believed. Any divergence, then, from Paul’s definition there or any alternate explanation offered by anyone was heresy to be rejected by the Church throughout the ages.

The next few centuries of Church history brought more false teachers and heretical teachings to the fore. False teachers generally would not be successful in stealing believers away from the faith if they plainly stated that Christianity is bogus. What false teachers did then—and still do now—is subtly corrupt the meaning of words and doctrines so that people leave the faith without even knowing they are leaving it. They may still call themselves “Christians,” but they will not hold to true historic Christianity, but rather a counterfeit.

Gnosticism, for example, denied The Incarnation of Jesus by claiming that God could not have taken on human flesh, because physicality was supposedly evil. They used Christian terminology, but simply redefined the words to capture the ignorant or unwary in their net. The Gnostic “Christians” had left the faith and were intent on taking as many as possible with them. But the Early Church Fathers, who held to the “… faith once for all delivered to the saints” (Jude 1:3) did battle with these early heretics by writing prolifically in defense of the Humanity of Jesus as well as affirming His Divinity and, in the process, debunking the Gnostic heresy.

These early Christian apologists (an apologist is one who reasons in defense or justification of something) saw the need to plainly restate and affirm the faith as it was believed from the beginning, which resulted in what we know as The Apostle’s Creed:

I believe in God, the Father Almighty, the Creator of heaven and earth, and in Jesus Christ, His only Son, our Lord: Who was conceived of the Holy Spirit, born of the Virgin Mary, suffered under Pontius Pilate, was crucified, died, and was buried. He descended into hell. The third day He arose again from the dead. He ascended into heaven and sits at the right hand of God the Father Almighty, whence He shall come to judge the living and the dead. I believe in the Holy Spirit, the holy catholic* church, the communion of saints, the forgiveness of sins, the resurrection of the body, and life everlasting. Amen.1

Note the language emphasizing Jesus’ humanity— that He was born and died as a man, as well as affirming His death and Resurrection. What they were doing was formalizing (not to be confused with formulating) the true faith as opposed to Gnostic teaching. But Gnosticism was not the only heresy that Christianity would encounter through the ages, so more elaborate creeds were needed as time went by. Each successive creed was a bit longer and more belabored in their definitions. The Nicene Creed was crafted in the fourth century (325 A.D.) and approved by the Nicene Council.

We believe in one God, the Father, the Almighty, maker of heaven and earth, of all that is, seen and unseen.

We believe in one Lord, Jesus Christ, the only Son of God, eternally begotten of the Father, God from God, Light from Light, true God from true God, begotten, not made, of one Being with the Father.

Through him all things were made.

For us and for our salvation he came down from heaven: by the power of the Holy Spirit he became incarnate from the Virgin Mary, and was made man.

For our sake he was crucified under Pontius Pilate; he suffered death and was buried.

On the third day he rose again in accordance with the Scriptures; he ascended into heaven and is seated at the right hand of the Father.

He will come again in glory to judge the living and the dead, and his kingdom will have no end.

We believe in the Holy Spirit, the Lord, the giver of life, who proceeds from the Father and the Son.

With the Father and the Son he is worshiped and glorified.

He has spoken through the Prophets.

We believe in one holy catholic and apostolic Church.

We acknowledge one baptism for the forgiveness of sins.

We look for the resurrection of the dead, and the life of the world to come.

Amen

The Nicene Council again reaffirmed and more clearly stated that which had always been believed and taught. This creed was drafted in response to Arius—a very popular false teacher who taught that Jesus was merely a created being and not God.

Since with Arianism it was now Christ’s Deity that was being challenged, rather than his humanity, it was His Deity that was stressed in the Nicene Creed.  But, alas, it wasn’t long before false teachers found ways to twist biblical words and concepts in new and ingenious ways to support newly minted false doctrines. Sabellius was another heretic who taught a modalistic view of God—wherein the Father became the Son, and the Son became the Holy Spirit.

So, in response to new heresy, Christians had to define and clarify biblical teachings yet again, to separate true Christian doctrine from the teachings of pretenders who would co-opt the faith for their own gain.

Hence, the Athanasian Creed2 states:

This is what the catholic [universal] faith teaches: we worship one God in the Trinity, and the Trinity in unity.3

To make sure that this statement could not be co-opted by false teachers, it continues with a sort of “by-this-I-mean” delineation:

Neither confounding the Persons, nor dividing the substance. For there is one person of the Father, another of the Son, another of the Holy Spirit. But the Father and the Son have one divinity, equal glory, and coeternal majesty. What the Father is, the Son is. The Father is uncreated, the Son is uncreated, and the Holy Spirit is uncreated. The Father is boundless, the Son is boundless, and the Holy Spirit is boundless. The Father is eternal, the Son is eternal, and the Holy Spirit is eternal. Nevertheless, there are not three eternal beings, but one eternal being. So there are not three uncreated beings, nor three boundless beings, but one uncreated being and one boundless being.4

Notice in this creed the clear delineating of the persons of the Trinity to combat Sabellianism. The creed goes on at great length in a “by-this-we-mean” and “by-this-we-do-notmean” fashion in order to prevent heretics from distorting their words and meanings.

In matters of faith, the Church has continually stated, defined, and refined the definitions, while never deviating from the core teachings of biblical and historic Christianity. This battle to affirm and remain loyal to the true faith once for all delivered to the saints continues today within the Church as new challenges continue to arise. Definitions are as important as ever.

Misunderstanding, fuzzy thinking, and purposeful distortion have consequences in other areas of life as well

He Made Them Male And Female

In areas of Christian practice, a number of things have been regarded as true by Christians for nearly 2,000 years. The predominant Christian view also influenced how non-Christians thought and behaved. For example: In the first-century, Greco-Roman culture, an adult male often had a catamite5 (a boy kept by a pederast). The Church so influenced culture that this vile practice of child molestation was abandoned and has been prosecutable by law for many centuries. However, this is a practice which NAMBLA (The North American Man Boy Love Association) would like to affirm and legalize again.

In another cultural area, marriage (in the Western world at least) has been esteemed to be a union of one man and one woman. Even in the pre-Christian, Greco-Roman world, marriage was a union of one man and one woman. The man might also have had a mistress and/or catamite, but the institution of marriage was always understood to be one man and one woman. As Christianity gained influence, child molestation was abandoned; and fidelity in marriage—as the Bible defines it— came to be held in high regard. After all, Jesus Himself stated:

And He answered and said, “Have you not read that He who created them from the beginning MADE THEM MALE AND FEMALE, and said, ‘FOR THIS CAUSE A MAN SHALL LEAVE HIS FATHER AND MOTHER, AND SHALL CLEAVE TO HIS WIFE; AND THE TWO SHALL BECOME ONE FLESH’? “Consequently they are no longer two, but one flesh. What therefore God has joined together, let no man separate.” (Matthew 19:4-6)

Until very recently, not many in the Western world even would have thought to question the definition as defined by the American Heritage Dictionary:

The legal union of a man and a woman as husband and wife.6

Certainly, no other definition was legally sanctioned.

Defining Moments

In 1604, the English Parliament enacted laws which made bigamy a felony. Marriage—meaning one man and one woman—had long been accepted as a sacred sacrament. After America won its independence from England, each of the states also enacted anti-bigamy laws. However, since marriage had such a universally accepted definition, little attention was paid to the laws which were on the books. There didn’t need to be – until the laws were challenged.

The first real legal challenge to the definition of marriage in the Western world came from the Church of Jesus Christ of Latter-day Saints (a.k.a. Mormons). In the 1800s, the Mormon church found itself run out of Missouri and Illinois because of their highly detested doctrine and practice of polygamous unions. So the Mormons pulled up stakes, headed west, and settled in what they called the State of Deseret—now known as Utah. There they continued their reviled practice of polygamous unions, which led inexorably to other despicable practices such as more-or-less-sanctioned abuse of women and very young girls being taken into forced “marriages.” The Federal Government had reasonable concern about the outlandish practices of the LDS church in the area of marriage; but since polygamy was considered by the Mormons to be not just an alternative lifestyle, but also a divinely mandated one, the dispute could not be resolved easily. The government of the young United States of America was facing a challenge from one of its territories about the legal (as well as the only culturally accepted) definition of marriage. The nation rose to the occasion and settled the dispute: In order to become a state, Utah would have to abandon its peculiar definition of marriage and accept the long-held definition of the rest of the states and of the Western world. On July 8, 1862, the Morrill Anti-Bigamy Law was signed by then-President Abraham Lincoln. Although the law contained fines ($500—a large amount of money in those days) and up to five years in prison, there was a loop hole: “Bigamy” involves two wives, whereas “polygamy” is many wives, which could be—and was—exploited by the LDS. There was also a lack of will on the part of President Lincoln to enforce this law with regard to the Mormons. This loop hole was closed in 1874 with the Poland Act:

This law stated that all polygamy cases would be tried in federal courts with federally appointed judges. This way, Mormon judges or juries couldn’t just dismiss the cases.7

In the same year, George Reynolds, secretary to LDS President Brigham Young, wrote:

… an acknowledged polygamist with two wives, became a voluntary defendant in a test case to determine the constitutionality of the Anti-Bigamy Law of 1862, in which case he was found guilty in a lower court.8

The “acknowledged polygamist” was found guilty, fined $500, and sentenced to two years in prison. At this point, it seems to be taken for granted that marriage is between men and women. The particular question was how many women one man might have in this union. The definition of marriage—being one man and one woman—had been upheld and reaffirmed legally … at least for the moment. On January 6, 1877, the law was brought before the United States Supreme Court to determine its constitutionality, and:

… the United States Supreme Court upheld the decision of the territorial court and declared that every civil government had the right to determine whether monogamy or polygamy should be the law of social life under its jurisdiction.9

In other words, as far as the Supreme Court was concerned, each state, territory, county, town, and community would make their own local decisions on this matter. With this decision, the affirmed meaning of marriage was threatened through the possibility of redefinition, with the seeming blessing of the Supreme Court. That is, until 1882, with the passage of the Edmunds Act:

In 1882, the Edmunds Act made unlawful cohabitation a crime, and anyone who broke the law could be imprisoned for six months.10

More than 1,300 men were imprisoned as a result of the Edmund’s Act. The issue was revisited again in 1887 with the Congressional passage of the Edmunds-Tucker Act, which the Supreme Court found constitutional when it was tested. The government followed a path similar to that of the Church in the early centuries: In response to “heresy” against the culturally accepted and understood definition of marriage, that definition was clarified, codified, and written into law. The “creed” the lawmakers came up with, defining marriage and defending it against mischaracterization and misuse, has remained intact for the last 118 years. However, in recent times, it is being challenged again.

By the time the 1960s “sexual revolution” arrived on the scene, the Edmunds-Tucker Act had gone the way of the anti-bigamy laws that had been enacted by each state with the founding of the United States. It was still “on the books” but not much in use. The definition of marriage was not challenged, even in the rebellious 60’s, since the “free love” advocates didn’t see much use in making permanent commitments anyway. Who cares about the definition of some outdated concept? However, as the “sexual revolution” matured, it spawned various sexual “civil rights movements” whose adherents began to see great benefit in gaining cultural acceptance and government sanction of their “lifestyles.” It no longer was enough to ignore or spurn conventional definitions of marriage; the agenda now was to gain acceptance of their perverse inclinations and back this cultural acquiescence up with the force of law.

Change Agents

Changing cultural norms takes time and can utilize various avenues. One way to change minds on a massive scale is to begin making changes on a small scale and allow these ideas to take root and grow until the concept is completely accepted and legitimized. “Living together” in an unmarried state was socially unacceptable and considered to be “living in sin” by nearly everyone in the pre-1960s; but now it is commonplace and almost universally accepted. Moreover, it is widely believed that living together before marriage is the wisest course to take to determine if the couple is compatible. (Completely ignored is the inconvenient fact that couples who do live together before marriage have a higher marriage-failure rate than those who do not.) Except for a number of “reactionary” and “bigoted” Christians, “everyone is doing it.” It seems the very definition of someone who is “reactionary and bigoted” is someone who still believes in something called “sin.”

Another way to change culture is to liberally apply euphemisms and/or neologisms for words in common use in order to obscure unpleasant truths. The use of euphemisms and/or neologisms quiets everyone down and keeps them asleep while a veritable earthquake of transformation is taking place all around them. We saw this in the abortion debate. There is no question that abortion is the taking of a human life. So, if euphemisms and/or neologisms had not been employed early on in the debate in order to obscure the obvious, it would have been very difficult to get the masses to rally behind killing the most innocent (and delightful!) among us—tiny helpless babies. Even applying the death penalty to convicted murderers is controversial; so imagine if someone were to propose the wanton slaughter of infants? Thus, the baby in the womb became merely a “fetus”—a mass of unviable tissue, something that can be guiltlessly “disposed of” if inconvenient or unwanted. Now we know that fetus is a perfectly good word, and we have no quarrel with it, except for the fact that it is being used to “water down” the fact that what are dying in abortions are BABIES.

Another word game is played by the left when they claim they are not “pro-abortion,” but “pro-choice.” Could it be that despite all of the liberal protestations that there is nothing whatsoever wrong or evil about aborting children, they still are squeamish about being identified as an open promoter of the practice? Why is that, should we suppose? Putting that aside for the moment, if one is to be truly pro-choice, should not a father also have the right to choose whether his child lives or dies? What about a parent’s right to choose what type of medical procedure their teen-age daughter may undergo? And if parental rights are to be trumped by their minor child’s right to choose abortion, what about an admittedly smaller minor’s right to choose whether they are torn limb from limb or allowed to live in a peaceful and pain-free environment to term and then be delivered into the world. Of course, we would be forced to guess what choice the unborn child would make, but it can’t be that hard to surmise.

This type of double standard is one reason why it is very convenient for the left to have the mainstream media in their pocket—so the other side of the story barely sees the light of day. The public “megaphone” is a very powerful change-agent. And even though, over the past decade or so, conservative voices are being heard on talk radio and the internet, the media’s monopoly over what middle America sees and hears is still pretty much of a lock. Joe and Jill America, who consider themselves to be apolitical, still get their news for the most part from the liberal networks and passively assimilate the beliefs of the Hollywood whorehouse and the popular music sewer.

And of course, another very effective way to change cultural thinking is to demonize and/or ridicule those who refuse to get on the bandwagon. You sexist, bigoted, homophobe you!!!

The Federal Marriage Amendment

Currently, a small group of homosexual activists are pressing to stretch the definition of marriage to include the union of two people of the same sex, seemingly oblivious to the fact that calling a circle a square does not make it square. These activists are well financed. The Alliance for Marriage (www.allianceformarriage.com), an organization that supports the Marriage Amendment asserts:

Radical activist groups are now very close to their goal of completely destroying marriage as a legal and social institution in America. And as Senator Bill Frist clearly says, now is the time to protect and defend it.

In fact, the top five organizations spearheading the national campaign to redefine marriage have revenues exceeding $160 million per year! Lawsuits have been filed or are being planned in all 50 states – including yours! 11

In a pluralistic nation with a representative form of government, homosexuals have every right to attempt to persuade public opinion and legislation in their favor. By the same token, those who are opposed to this agenda have the same right to attempt to persuade Congress to stand firm by the definition of marriage which has been commonly agreed upon for centuries. The Marriage Amendment is not a radically new idea being imposed upon an unwilling nation by Washington, but rather it is simply a restatement and reaffirmation of the definition of marriage which has been the common understanding since the founding of the nation. It is necessary because of the aggressive campaign of those who desire to co-opt the very definition of marriage to include something that it has never meant or included previously. The Marriage Amendment is simple, straightforward and easy to understand:

Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution, nor the constitution of any State, shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman.12

The Alliance for Marriage continues with four statements to clarify what this proposed amendment means and what it doesn’t mean:

  • The first sentence simply states that marriage in the United States consists of the union of one man and one woman.
  • The second sentence ensures that states can determine the allocation of the benefits associated with marriage.
  • AFM’s Marriage Amendment has no impact at all on benefits offered by private businesses and corporations.
  • People have a right to live as they choose, but no one has the right to redefine marriage for our entire society.13

Enter The Cato White Papers

On September 23, 2004, gay activist, columnist, and associate professor at the University of Minnesota Law School, Dale Carpenter, issued on the Cato White Papers and Miscellaneous Reports a paper titled: “The Federal Marriage Amendment: Unnecessary, Anti-federalist and Anti-democratic.”14

The title, itself, is designed to effectively cut off further discussion of the issue. After all, the average person, including the average Christian, doesn’t necessarily want to be “anti” anything, much less “anti-federalist” or “anti-democratic.” Professor Carpenter then goes on further to misrepresent the proposed amendment.

Members of Congress have proposed a constitutional amendment preventing states from recognizing same-sex marriages. Proponents of the Federal Marriage Amendment claim that an amendment is needed immediately to prevent same-sex marriage from being forced on the nation. The policy debate on same-sex marriage should proceed in the 50 states, without being cut off by a single national policy, imposed from Washington and enshrined in the Constitution.15

In this short introductory paragraph of the “Executive Summary,” Professor Carpenter uses the phrase “same-sex” in conjunction with “marriage” in all three sentences, as though this is already a part of the definition of marriage. In doing so, he has attempted to cloud the issue. The very reason for the proposed amendment is to formally assert and stand by the already existing definition of marriage. As The Alliance for Marriage points out:

People have a right to live as they choose, but no one has a right to redefine marriage for our entire society.16

Professor Carpenter goes on to assert that “Proponents of the Federal Marriage Amendment claim that an amendment is needed immediately …” While that is true, his opening paragraph keenly demonstrates the need for the amendment.

Lastly, he resorts to fear tactics when he writes that the marriage amendment would be “imposed from Washington and enshrined in the Constitution.” Ah … imposed—“Big Brother” government is enforcing its arbitrary rule on the unwilling necks of the citizenry. This claim self- destructs on page 19 of his paper where he points out:

To be adopted using the usual procedure, an amendment would be “super-democratic” in that it requires two-thirds approval of both houses of Congress and approval from three-fourths of the states.17

In other words, the Marriage Amendment would not be “imposed from Washington” but would go through a “super-democratic” process in which all Congressional representatives and states participate. His defense for his initial claim of imposition is an interesting one:

… any amendment is anti-democratic as to the states that refuse to ratify it.18

Using that reasoning, one could argue that presidential elections are anti-democratic since some of the states voted for the candidate who lost!

Professor Carpenter then lays out his “four main arguments against the proposed Federal Marriage Amendment:”19

First, a constitutional amendment is unnecessary because federal and state laws combined with the present state of the relevant constitutional doctrines, already make court-ordered nationwide same-sex marriage unlikely for the foreseeable future. An amendment banning same-sex marriage is a solution in search of a problem.

Second, a constitutional amendment defining marriage would be a radical departure on the nation’s founding commitment to federalism in an area traditionally reserved for state regulation, family law. There has been no showing that federalism has been unworkable in the area of family law.

Third, a constitutional amendment banning same-sex marriage would be an unprecedented form of constitutional amendment, cutting short an ongoing national debate over what privileges and benefits, if any, ought to be conferred on same-sex couples, and preventing democratic processes from expanding individual rights.

Fourth, the amendment as proposed is constitutional overkill that reaches well beyond the stated concerns of its proponents, foreclosing not just courts but also state legislatures from recognizing same-sex marriages and perhaps other forms of legal support for same-sex relationships. Whatever one thinks of same-sex marriage as a matter of policy, no person who cares about our Constitution and public policy should support this unnecessary, radical, unprecedented, and overly broad departure from the nation’s traditions and history.20

One of Professor Carpenter’s primary concerns seems to be that the Marriage Amendment would cut off debate, which, in his opinion, “would substantially delay or permanently foreclose what may turn out to be a valuable social reform.”21

Are conservatives the ones who seek to cut off debate on this issue? Conservatives are often characterized as fascists who are attempting to shove their bigoted beliefs down the throats of the masses, but the truth is the exact opposite! It is the left who imposes their will on the rest of us by using friendly courts and judges—who are not supposed to make law at all—to accomplish their leftist agenda. And then, if the court system does not move fast enough to thrust liberal ideals upon the rest of us, they just blithely ignore any law that does not correspond to their beliefs until such time as the intimidated citizenry gives up and gives them their way. We experienced just this in 2003 and 2004 when there was an attempt to derail the very debate that Carpenter now claims to think is so important. The left tried to impose their will upon the rest of us by fait accompli—homesexual “couples” traveled to friendly locales such as San Francisco, Oregon, or Massachusetts to participate in a type of “marriage” ritual. They then returned home and attempted to force their unwilling native states to legitimize their wholly illegal actions! There is nothing wrong with our elected leaders taking a pro-active attitude to decide the issue once for all on a national level. In fact, a failure to act immediately would potentially lead to a small number of states breaking with the traditions of the country as a whole. That was the basis upon which the Civil War was prosecuted (on an entirely different issue, of course).

A Little Bit Of History

What many do not realize is that the definition of marriage has been under assault for at least the last 34 years, beginning with Baker v. Nelson in 1971. The following is the “Chronological History of Same-Sex Marriage Attempts:”

Baker v. Nelson (Minnesota, 1971). A gay male couple argued that the absence of sex-specific language in the Minnesota statute was evidence of the legislature’s intent to authorize same-sex marriages. The couple also claimed that prohibiting them from marrying was a denial of their due process and equal protection rights under the Constitution. The court stated that it could find no support for these arguments in any United States Supreme Court decision.

Jones v. Hallahan (Kentucky, 1973). A lesbian couple argued that denying them a marriage license deprived them of three basic constitutional rights — the right to marry, the right to associate, and the right to freely exercise their religion. The court refused to address the constitutional issues, holding that “the relationship proposed does not authorize the issuance of a marriage license, because what they propose is not a marriage.”

Singer v. Hara (Washington, 1974). A gay male couple argued that denying them the right to marry violated the state Equal Rights Amendment. The court disagreed, holding that the purpose of the statute was to overcome discriminatory legal treatment between men and women on account of sex.

Adams v. Howerton (Colorado, 1975). The couple, a male American citizen and a male Australian citizen, challenged the Board of Immigration Appeals refusal to recognize their marriage for the purpose of the Australian obtaining U.S. residency as the spouse of an American. (The couple participated in a marriage ceremony with a Colorado minister and had been granted a marriage license by the Boulder, Colorado county clerk.) The court ruled that the word “spouse” ordinarily means someone not of the same sex. Then it noted the 1965 amendments to the Immigration Act, which expressly barred persons “afflicted with sexual deviations” (homosexuals) from entry into this country. The court concluded that it was unlikely that Congress intended to permit homosexual marriages for purposes of qualifying as a spouse of a citizen, when the Immigration Act explicitly bars homosexuals from entering into the United States.

Thorton v. Timmers (Ohio, 1975). A lesbian couple sought a marriage license. In denying their request that the court order the clerk to issue them a license, the court concluded that “it is the express legislative intent that those persons who may be joined in marriage must be of different sexes.”

De Santo v. Barnsley (Pennsylvania, 1984). When this couple split up, De Santo sued Barnsley for divorce, claiming that the couple had a common-law marriage. A common-law marriage is one where the partners live together and act as a married couple, without going through a formal marriage ceremony. Only a few states still recognize common-law marriages – in 1984 Pennsylvania was one of those states. The court threw the case out, stating that if the Pennsylvania commonlaw statute is to be expanded to include same-sex couples, the legislature will have to make that change.

Matter of Estate of Cooper (New York, 1990). Cooper died, leaving the bulk of his property to his ex-lover. His current lover sued to inherit as a surviving spouse under New York’s inheritance laws. The court concluded that only a lawfully recognized husband or wife qualifies as a surviving spouse and that “persons of the same sex have no constitutional rights to enter into a marriage with each other.”

Dean v. District of Columbia (Washington, DC, 1995). Two men sued the District of Columbia for the right to get married. They lost their case at the lower level and appealed. They lost again at the appellate level when the court decided, under current D.C. laws, that the district can refuse to grant marriage licenses to same-sex couples.

Baehr v. Miike (Hawaii 1999). A nine-year battle over the issue of same-sex marriages ended just 11 days before the Vermont ruling in Baker v. State, discussed below. The plaintiff in the Baehr case argued that Hawaii’s marriage license rules were discriminatory. The case set off a national debate over same-sex marriage rights and prompted an onslaught of state and federal legislation designed to preempt the possibility that other states would be forced to recognize same-sex marriages from Hawaii. The case was finally dismissed on the grounds that the legislature had passed a prohibition on same-sex marriages before the Hawaii Supreme Court could render a favorable opinion.

Baker v. State (Vermont 1999). Same-sex couples sued the state, the City of Burlington, and two towns, saying that refusal to issue them marriage licenses violated the Vermont Constitution and the state marriage laws. The Vermont Supreme Court, reversing a lower court decision, declared that the constitution required the state to extend to same-sex couples the same benefits and protections provided to opposite-sex couples. In response, the state legislature passed the Vermont Civil Union law, which went into effect in July 2000.

Goodridge v. Department of Public Health (Massachusetts, 2003). The Massachusetts Supreme Court held that the state law barring same-sex marriage was unconstitutional under the Massachusetts constitution and ordered the legislature to remedy the discrimination within six months. In February 2004, the court ruled that offering civil unions instead of civil marriage would not meet the requirements set forth in Goodridge.22

Reviewing the history of the case law demonstrates that until 1995, the courts held firmly to the preexisting definition of marriage. It wasn’t until six years ago (1999) that the courts began applying a new definition to the term marriage, thereby necessitating a reassertion of the original definition. Working quickly to forestall any further renegade courthouse tyranny, a number of state legislatures have already voted on and passed laws reasserting and reaffirming that marriage is as it always has been in this country—the union of one man and one woman. But there is a real concern that the Supreme Court which in recent years has taken on sovereign powers never imagined by the founding fathers, by fiat, may impose its will on the states, as it has done so many times before, by striking down the states’ position regarding this matter.

The Professor’s second argument is not persuasive, nor is it accurate. He alleges that a national law on the subject would be a “radical departure” from the rights of the states. Now that is funny! When have liberals ever been concerned about state’s rights? Putting that aside however, it should be noted that the national government has created much criminal law (the RICOH Statutes, et al) to which the states defer on a daily basis. Additionally, the national Congress has created laws (such as OSHA) which apply to all states, and which bear upon the socio-economic status of all the states. The OSHA law, of course, was necessary so that individual states could not create an imbalance of industry by having work environments that would favor big business over individual human safety. Now it may be true that some would call OSHA and RICOH radical intrusions upon the rights of the states, but they are national laws just the same, and as such, provide precedent, and poke Carpenter’s argument right in the eye.

His third point is simply false on several counts. He characterizes the proposed constitutional amendment as “unprecedented” and alleges that it would be “cutting short an ongoing national debate” on “same-sex marriage.” According to him, such a process would be “preventing the democratic process from expanding individual rights.” It should be pointed out that all prior constitutional amendments have been “unprecedented.” That is because they all have addressed “unprecedented” situations which needed either to be corrected or protected against. There is no manual or handbook that contains a list of the appropriate circumstances for which a constitutional amendment is deemed necessary. Constitutional amendments are considered on an ad hoc basis, and either embraced or rejected pursuant to the democratic process. The Professor does not make it clear how the “on-going national debate” can be cut short by the proposed process. Rather, the proscribed process (a constitutional amendment) is designed to bring the debated issue to a head. While the professor does not define whose “individual rights” should be expanded, it should be pointed out that it is equally as important that the democratic process protects the individual rights of the majority.

The very few occasions the accepted definition of marriage has been pressed, it has been affirmed either by Federal Act (super-democratic law) or (until at least 1995) by every court that ruled upon it. We also see a bit of distraction from the primary point (definition of marriage) through legal slight of hand when he writes:

Throughout the nation’s history, states have adopted their own family law policies, including their own requirements for marriage. These divergent policies have not created intolerable levels of confusion or conflict among the states.23

It is true that different states have different criteria regarding various points. For example: Can first cousins marry? In 26 states, this is legal. In the remaining states, it is not. However, in all states it is not legal to marry one’s parent, sibling, aunt or uncle, nor someone of the same sex. In all states it has always been one man and one woman since the founding of the nation! This brings us to his last main argument, that such a definition is “constitutional overkill.” If Professor Carpenter means by this that such an amendment so solidifies the existing definition—thereby eliminating the possibility of changing the definition even by judicial caveat—he is correct. At times, such strong reaction is warranted because of those who so adamantly want to impose their redefinition upon all of us.

Professor Carpenter’s fourth argument seems to “double back upon itself.” He states that a constitutional amendment is “constitutional overkill” because it forecloses the courts from recognizing “same-sex marriages;” but then he spends a great deal of ink explaining how the courts would be unlikely to ever approve them. His allegation that elected state judges would bow to the pressure of the electorate (which in and of itself acknowledges that the vast majority of people do not approve of so-called same-sex marriages) denies the practicalities of judicial elections. The electorate in general has little interest in judicial elections. Additionally, most states have a judicial ethics code which either prevents or sharply curtails the open debate of such issues. It should also be remembered that a judicial candidate must also be an attorney. It is extremely difficult to unseat an incumbent judge, and few attorneys (who are riled enough on an issue to enter a time-consuming campaign) are willing to suffer the consequences if they do not win. Federal judges are elected for life, and the impeachment process for federal judges is so difficult to accomplish successfully that it presents next to no deterrent at all. Surely Carpenter is aware that most liberal advances in this country have come as a result of judicial activism and imperiously have been imposed over the objections of the voters and their duly elected officials—who are the ones who are supposed to make law! Certainly, these judicial despots have not bowed to the pressure of the electorate. But then, as long as we are redefining words and phrases, perhaps bowing to the pressure of the electorate really means glibly ignoring the opinions and deeply held beliefs of the electorate … na na na boo boo. After all, words only mean what liberals imagine they mean.

In a moment of honesty, Professor Carpenter reveals that 39 states have prohibitions against same-sex marriages in their constitutions and laws, and that the 1996 Definition of Marriage Act (DOMA) also bars recognition of such unions (It takes 38 states to ratify a Federal Amendment.) He then opines that an amendment of the U.S. Constitution is unnecessary. In light of the fact that he has spent so much effort in constructing his dissertation on this issue, one is left to wonder whether he truly supposes those state “safeguards” are as “water tight” as he would have us believe.

What The World Needs Now Is Love, Sweet Love, And A Little St. Nicholas Too

Gene Edward Veith, writing in World Magazine, tells us that one of the bishops of the early church, specifically the Bishop of Myra (modern day Turkey) got a little carried away in his defense of Christ’s Deity at the Council of Nicea in 325. If you recall, the Council had been called to lay out clearly what had been taught and deemed true concerning the nature of Christ during the previous four centuries. The bishop’s name is one that is very familiar to all of us—St. Nicholas—who, in the midst of the proceedings, did a very unusual thing. Veith relates:

During the Council of Nicea, jolly old St. Nicholas got so fed up with Arius, who taught that Jesus was just a man, that he walked up and slapped him!24

Now we are not advocating slapping anyone, nor would we ever presume to do so, but you have to at least admire St. Nick’s passion for the truth. May we all be passionate enough about what is true and right to keep ourselves from being intimidated or lulled into passivity and slumber when it is challenged?

*Catholic church in the sense of “universal” church

  1. Legend has it that the Apostles wrote this creed on the tenth day after Christ’s Ascension into Heaven. That is not the case, though the name stuck. However, each of the doctrines found in the creed can be traced to statements current during the apostolic period. The earliest written version of the creed is, perhaps, the Interrogatory Creed of Hippolytus (ca. A.D. 215). The current form is first found in the writings of Caesarius of Arles (died 542).

    The creed was apparently used as a summary of Christian doctrine for baptismal candidates in the churches of Rome. Hence, it is also known as The Roman Symbol. As in Hippolytus’ version, it was given in question and answer format with the baptismal candidates answering in the affirmative that they believed each statement http://www.creeds.net/ ancient/apostles.htm

  2. The Athanasian Creed, also known as the “Quicumque vult,” was formerly recited at the Office of Prime on Sundays. It is one of the four authoritative creeds of the Catholic Church. The Anglican Church and some Protestant Churches also hold it to be authoritative. While the Creed has always been attributed to St. Athanasius (died 373 AD), it was unknown in the Eastern Churches until the twelfth century, and thus, it is unlikely he is the author. St. Ambrose is one suggested author, but many authors have been proposed with no conclusive agreements reached. Current theory suggests it was composed in southern France in the fifth century. In 1940, the lost ‘Excerpta’ of St. Vincent of Lerins (flourished in 440: “quod ubique, quod semper, quod ab omnibus creditum est”) was discovered, and this work contains much of the language of the Creed. Thus, either St. Vincent or an admirer have been suggested as the author. The earliest known copy of the creed was included in a prefix to a collection of homilies by Caesarius of Arles (died 542). http://www.creeds.net/ancient/Quicumque.html
  3. http://www.creeds.net/ancient/Quicumque.html
  4. http://www.creeds.net/ancient/Quicumque.html
  5. “a boy kept by a pederast”; http://www.m-w.com/dictionary/Catamite
  6. The American Heritage Dictionary: Third Edition ; (New York: Dell Publishing, A division of Bantam Doubleday Dell Publishing Group, Inc., 1994), p.509.
  7. “Understanding Polygamy in Mormon History,” http://www.dummies.com/religion/christianity/mormonism/understanding-polygamy-in-mormon-history/, accessed 6/16/2018
  8. Perry L. Porter, “A Chronology of Federal Legislation on Polygamy,” http://www.xmission.com/~plporter/lds/chron.htm, accessed 6/16/2018
  9. Perry L. Porter, “A Chronology of Federal Legislation on Polygamy,” http://www.xmission.com/~plporter/lds/chron.htm, accessed 6/16/2018
  10. “Understanding Polygamy in Mormon History,” http://www.dummies.com/religion/christianity/mormonism/understanding-polygamy-in-mormon-history/, accessed 6/16/2018, Op. Cit.
  11. “Historic Marriage Battle Looms in 2006 — A Critical Update …,” Alliance for Marriage email Friday, December 16, 2005 10:27 AM
  12. http://www.allianceformarriage.org/site/PageServer?pagename=mac_ FederalMarriageAmendment, accessed 6/16/2018
  13. http://www.allianceformarriage.org/site/PageServer?pagename=mac_ FederalMarriageAmendment, accessed 6/16/2018
  14. “The Federal Marriage Amendment: Unnecessary, Anti-federalist and Anti-democratic”; Dale Carpenter; Cato White Papers and Miscellaneous Reports; https://www.cato.org/publications/policy-analysis/federal-marriage-amendment-unnecessary-antifederalist-antidemocratic, 1, accessed 6/16/2018
  15. “The Federal Marriage Amendment: Unnecessary, Anti-federalist and Anti-democratic”; Dale Carpenter; Cato White Papers and Miscellaneous Reports; https://www.cato.org/publications/policy-analysis/federal-marriage-amendment-unnecessary-antifederalist-antidemocratic, 1, accessed 6/16/2018
  16. http://www.allianceformarriage.org/site/PageServer?pagename=mac_ FederalMarriageAmendment, accessed 6/16/2018
  17. “The Federal Marriage Amendment: Unnecessary, Anti-federalist and Anti-democratic”; Dale Carpenter; Cato White Papers and Miscellaneous Reports; https://www.cato.org/publications/policy-analysis/federal-marriage-amendment-unnecessary-antifederalist-antidemocratic, 1, accessed 6/16/2018, Op. Cit., p.11
  18. “The Federal Marriage Amendment: Unnecessary, Anti-federalist and Anti-democratic”; Dale Carpenter; Cato White Papers and Miscellaneous Reports; https://www.cato.org/publications/policy-analysis/federal-marriage-amendment-unnecessary-antifederalist-antidemocratic, 1, accessed 6/16/2018, Op. Cit., p.11
  19. “The Federal Marriage Amendment: Unnecessary, Anti-federalist and Anti-democratic”; Dale Carpenter; Cato White Papers and Miscellaneous Reports; https://www.cato.org/publications/policy-analysis/federal-marriage-amendment-unnecessary-antifederalist-antidemocratic, 1, accessed 6/16/2018, Op. Cit., p.1.
  20. “The Federal Marriage Amendment: Unnecessary, Anti-federalist and Anti-democratic”; Dale Carpenter; Cato White Papers and Miscellaneous Reports; https://www.cato.org/publications/policy-analysis/federal-marriage-amendment-unnecessary-antifederalist-antidemocratic, 1, accessed 6/16/2018, Op. Cit., p.1.
  21. “The Federal Marriage Amendment: Unnecessary, Anti-federalist and Anti-democratic”; Dale Carpenter; Cato White Papers and Miscellaneous Reports; https://www.cato.org/publications/policy-analysis/federal-marriage-amendment-unnecessary-antifederalist-antidemocratic, 1, accessed 6/16/2018, Op. Cit., p.2
  22. “Same Sex Marriage: Developments in the Law”; https://www.nolo.com/legal-encyclopedia/same-sex-marriage-developments-law-29828-2.html, accessed 6/16/2018
  23. “The Federal Marriage Amendment …,” Op. Cit., p.6
  24. Gene Edward Veith, “Slappy Holiday: Why not take the Santa Claus tradition a little further?” World Magazine, Vol. 20, No. 50 (December 24, 2005

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