Congress needs to act now to restore the rule of law on the homosexual marriage issue. Congress should pass legislation prohibiting such unions. Congress can justify providing heterosexual couples special benefits not available to single adults, but providing such benefits to homosexual couples would discriminate against those of us who don’t want to become part of a couple. Passing legislation would establish the fact that Congress has just as much constitutional authority to interpret the Constitution as the courts do.
Congress doesn’t need to pass a constitutional amendment to prohibit homosexual marriages. Congress can eliminate them with a simple Act of Congress that would also demonstrate the fact that Congress and the President have just as much power to interpret the Constitution as the courts do. According to Chief Justice John Marshall’s opinion in the case of Marbury v. Madison the court’s power to interpret the Constitution comes from the oath justices take to enforce the Constitution. The president and members of Congress take the same oath that justices take. Thus, the president and members of Congress must have the same authority to interpret the Constitution that Supreme Court justices have.
Passing a Constitutional amendment would take a long time and allow Democrats to claim they oppose the measure because they are protecting the Constitution. With Republicans in control of Congress, pushing for an Act of Congress will force Democrats to take a stand on the issue.
The approach I suggest would have Congress pass an Act stating that the 14th Amendment’s equal protection clause precludes homosexual marriages or any other action that provides special benefits/privileges to homosexuals not available to those who are not part of couples. This approach would indicate that marriage licenses which have been issued to homosexuals lacked legal standing.
The equal protection clause prohibits state governments from providing or authorizing special benefits/privileges to some unless this discrimination serves a substantial state interest. Marriage provides certain benefits/privileges such as prohibiting spouses from being forced to testify against each other, automatic deduction for a spouse on income taxes and survivor’s benefits under Social Security.
Providing such benefits discriminates against those who prefer a single life style, people who don’t want a “partner” of either sex. Providing extra benefits to those who become part of any type of couple would further discriminate against single persons.
These benefits can be justified for members of heterosexual couples because the state has an interest in the production of workers for society. Unions between persons of the opposite sex are required for this production of new workers. This process can be started using artificial insemination, but more commonly involves a physical union between a man and a woman.
Providing benefits that encourage such unions allows government to encourage the production of new workers. Government cannot require women to become pregnant without invading their privacy. Nor, can government require a fertility test without invading privacy. The most government can do is provide incentives that encourage pregnancy.
Encouraging heterosexuals to live together as couples increases the likelihood that they will engage in sexual relations that produce children. Even with modern birth control pills, “accidents” occasionally happen.
Encouraging such unions can benefit single persons by insuring a supply of workers to replace us in the job market when we retire. Workers to provide us with goods and services such as food or police protection.
Unions between members of the same sex cannot further this process. Men cannot become pregnant and a woman cannot get another woman pregnant. Government cannot justify providing the same special benefits to unions between homosexuals because such unions do not serve any substantial government interest.
Government could authorize unions that allow joint ownership of property or allow individuals to make health decisions for each other provided that there is no requirement for any special relationship between the members of the union, or any prohibitions of who can form such unions other than that they be of sufficient age to act on their own behalf. What government cannot do is authorize members of such unions to receive special benefits unavailable to those who aren’t part of a couple.
The Act should further state that employers can provide health insurance to the dependent children of employees or an employee’s spouse without providing benefits of comparable value to other employees. Such deviation from equal pay for equal work is justified for the same reason heterosexual marriage is justified. However, employers may not provide health insurance for the partners of homosexual employees without providing benefits of comparable value to other employees because there is no justification for such discrimination.
The Act should say that in U.S. law the particular union called “marriage” shall apply only to the union of one man and one woman. Male and female would be defined according to their anatomy. For example, individuals possessing a penis would be defined as legal males. Those with a vagina would be defined as legal females.
Note: Male and female cannot be defined genetically. Although most of those who have an “X” and a “Y” chromosome have a male anatomy, there are a few individuals with these chromosomes are have a female anatomy. Similarly, most of those with two “X” chromosomes have a female anatomy, but there are a few with two “X” chromosomes who have a male anatomy.
Only such a union could qualify for the special benefits/privileges associated with marriage. Individual states could establish such additional requirements as they desire, being of a minimum age for example but could not authorize any other type of union as a “marriage”.
The individuals states would also be able to define the grounds for ending such unions, except that states could not deny the right to divorce to spouses with grounds for divorce who are unable to seek a divorce because of mental illness, inability to communicate, etc.. Such denial of the right to divorce is a violation of the 14Th Amendment. A member of the disabled person’s immediate family or, if the person had no immediate family, a close genetic relative should be able to ask for a divorce on the disabled person’s behalf. The Act would further state that no state official who knows that a disabled person has grounds for divorce could allow the disabled person’s spouse to make health decisions on the disabled person’s behalf or undertake financial transactions that would otherwise require the disabled person’s consent.
Because the Act would be defining the equal protection clause rather than stating a new law it would not need to provide specific penalties for denying the right to divorce. Instead it would state that violations would be actionable under existing criminal or civil law as appropriate. Criminal action might include prosecution for wrongful death if the official’s action led to the death of the disabled person. Civil action might include having to reimburse the disabled person for money the official improperly allowed the spouse to spend.
The Act could also provide specific new penalties, including providing for fines or imprisonment for those who violate the right to divorce.
The United States legal system cannot function effectively with a wide diversity of laws stating the classes of people who can obtain a legal “marriage”. We cannot have some states authorizing homosexual marriages and some not, particularly if those states that don’t must honor the actions of states that do. Allowing this condition allows one state to dictate to other states whose residents cannot act against the politicians who support a legal status they oppose.
Under our system of government only the national government can impose situations on the various states. One state may not be allowed to impose situations on others.
Congress must act now to insure uniform laws that do not unfairly discriminate against anyone. We are witnessing a complete breakdown of laws as local government officials take it upon themselves to change the law without any legal authorization. The Massachusetts Supreme Court has blatantly violated the state and federal constitutions by ordering the state legislature to pass legislation. Such action directly violates the separation of powers principle.
Only Congress can deal with this situation. It is time for Congress to demonstrate some leadership for a change. We cannot wait for a constitutional amendment. Congress needs to use the authority it already has under the 14th Amendment to establish uniform laws that prevent discrimination against single persons.
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