Posted by
Jim Hunt on Monday, November 17, 2008 7:00:00 AM
Recently I was reading a column decrying the liberal view that the Constitution is a “living” document that needs to be viewed in terms of today’s mores rather than for what the document actually says. I am a firm believer that the founders knew what they were doing and that the document should be read literally. It is a very clear and concise document, which part of “shall not be infringed” is unclear to anyone?
However, the habit of adding or deleting parts of the Constitution to suit the whim of the reader is regrettably not limited to one political persuasion. This particular columnist, a representative of the National Center for Constitutional Studies, found a Constitutional requirement to protect marriage: “The core unit which determines the strength of any society is the family, therefore governments have the responsibility to foster and protect its integrity.”
I went online and pulled up the text of the Constitution and did some searching. Nowhere did I find any reference to the words marriage or family. The closest reference to anything of the sort is in the First Amendment which I am afraid people only know in abstract.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
The first clause of this amendment is about religion. It says that there shall be no state established religion (the “establishment clause”) AND that there shall be no laws prohibiting the free exercise of [any] religion. Nowhere does it say or even imply that there should be a wall separating church and state. Nor does it say that the state has a responsibility to protect people from religion. In fact quite the opposite, the people who call for banning prayer at football games and graduations are clearly “prohibiting the free exercise thereof”.
To me, the establishment clause and its qualifier emphasizing that not only can Congress not create a state religion but that it also cannot limit the free exercise of religion, are very clear. They also tell me that laws prohibiting polygamy and homosexual marriage are clearly unconstitutional limitations on the free exercise of religion. I am not commenting in any way about the morality of polygamy or homosexual marriage, that is a religious and personal issue, not a subject for government intervention. In my view, the Constitution makes it clear that individual rights are paramount and what happens between consenting adults is not a matter for government.
The entire issue of marriage as a function of government seems absurd to me. It has only become an issue for government since the tax code began to be used to manipulate societal behavior. Marriage should be purely an issue for religion, the only place government would become involved is the enforcement of the civil aspects of marriage which are simply a contract between individuals. As is the case with any contract between individuals, when a dispute arises it is the purview of the civil courts to resolve that dispute. This is a state and local function not a federal function.
I do not believe that courts should ever make laws. Their job is to determine if a given law is Constitutional. Just because a majority of Congress, or a legislature, or of the people in a referendum have voted for a law, it does not make it Constitutional. The role of the courts is to protect all of us from the tyranny of the majority. I see nothing that indicates that the Founding Fathers wanted government to be in the marriage business. Let’s leave marriage where it belongs, in the churches and the civil processes.
God Bless America!