By David Tulis
The rulings in U.S. district courts against state constitutions that define marriage as being between one man and one woman are a form of proposed blindness that the judges expect will be imposed on the citizens of the states for their benefit.
Such a ruling came down in Tennessee last week, favoring unions of three out-of-state couples who are demanding to have their erstwhile marriages, nuptials created elsewhere, recognized by county clerks in the Volunteer state.
In a rush of judicial giddiness, U.S. magistrates in the South are heaping up disregard of the will of the people in those states and promising to impose inequality upon them, awaiting a high court ruling that in a unified theory imposes gay marriages unequally among the states. To states that recognize gay unions, no problem. To states whose people defer to biblical tradition and human history, inequity, unequal results and inequality are to be accepted on the basis of a few pages of typed legal opinion.
The federal judge in the Tennessee case, Tanco vs. Haslam for short, expresses such excitement about the prospect of redefining marriage to include man-man and woman-woman unions that she is swept along in what seems an inexorable legal tide to deconstruct marriage and overturn what she calls “anti-recognition laws.”
At this point, all signs indicate that, in the eyes of the United States constitution, the plaintiffs’ marriages will be placed on an equal footing with those of heterosexual couples and that proscriptions against same-sex marriage will soon become a footnote in the annals of American history.
So says Judge Aleta Trauger from the bench in the Nashville division of the U.S. district court system. She wants New York and California to be imposed on Tennessee.
Let us suppose for a moment that the gay lobby is right. It was stated after Doma, the Defense of Marriage Act was partly overturned in the Windsor case that all homosexuals and their allies have to do is bring another case before the court, and its majority will enter into the field of marriage once again, this time not just in federal questions, but within the states themselves, within their provinces and jurisdictions.
Federalism and local economy
The Windsor decision in many ways appears to make a pro-gay ideological ruling based on a structure of law that resists its goal of giving the federal government hegemony over marriage, one more area of state authority deleted to the benefit of concentrated federal judicial and executive power.
Windsor’s discussion about federalism may be only a distraction; Justice Antonin Scalia views it that way in a bitter dissent. But the federalism discussion over eight pages in a 26-page opinion is perhaps the rational and legal argument in the opinion.
I’d like to look at it briefly because local economy depends on local self-determination. Local self-determination is dependent somewhat on state “sovereignty,” as it’s called, and a state’s determination of its own future (think of the Crimea vote to become independent and join the Russian Federation) is premised on its authority and distinctives being recognized by a national or imperial government. Decentralization and diversity tend to bring freedom and the liberty of self-determination. Centralization tends to bring the opposite — absolutism, despotism and disregard of people’s region, culture, mores and religion.
Windsor’s logic for overturning a federal definition of marriage is that states determine the framework of marriage. If states and people within them believe gay marriage is legal, they should not be contradicted by Washington and its U.S. Code. Doma was a directive applicable to more than 1,000 federal statutes and a “whole realm of federal regulations.”
“Consistent with this allocation of authority, the federal government, through our history, has deferred to state law policy decisions with respect to domestic relations,” the majority says. Federal courts do not adjudicate issues of marital status, don’t hear divorce or custody cases. Doma errs because it “rejects the long-established precept that the incidents, benefits, and obligations of marriage are uniform for all married couples within each State, though they may vary, subject to constitutional guarantees, from one State to the next.” Doma errs because it “departs from this history and tradition of reliance on state law to define marriage.” The majority complains about the history of the act as bigoted, and cites its name as bearing the evil of seeking to impose upon the various states a pernicious and solely historic understanding of marriage and “interfere with state sovereign choices about who may be married.”
The problem with Doma, the majority says, is that it smashes states’ rights. “Doma’s principal effect is to identify a subset of state-sanctioned marriages and make them unequal. The principal purpose is to impose inequality, not for other reasons like governmental efficiency. *** Doma forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect. By this dynamic Doma undermines both the public and private significance of state-sanctioned same-sex marriages *** .”
Feds shove inequity into Tennessee
In a memorandum, federal judge Trauger ignores this chatter and suspends the operation of state law vis a vis six individuals on grounds that the gay theory is “likely to prevail” and that the state constitutional marriage amendment, approved by voters and the general assembly, is likely to be found unconstitutional. The grounds for that are that marriage laws do not stand even the weakest high court rational basis test, and violate gays’ rights under equal protection, right to travel and due process provisions of federal law.
Mrs. Trauger says your state’s marriage law imposes “irreparable harm” on the gay plaintiffs that include “dignitary and practical harms.” One plaintiff, a soldier, cannot be married to his male lover once off of military property in Memphis, “which he finds painful, demeaning and diminishing.”
She looks sideways at the cascade of other lawsuits across the South seeking to overturn marriage laws. “In light of this rising tide of persuasive post-Windsor federal caselaw, it is no leap to conclude that the plaintiffs here are likely to succeed in their challenge to Tennessee’s anti-recognition laws.” She brushes aside the discussion in Windsor on federalism and state’s rights, saying that “notions of federalism permit Tennessee to discriminate against same-sex marriages consummated in other states” cannot stand.
In other words, she and the rest of the national government are going to impose via law a regime of blindness, gladly taken on, eagerly adopted, in which your marriage under state license is just one variety of acts given permission to exist. (I won’t here get into the question of common law marriage, or marriage by right, available only to man and woman. A license is defined as permission to do an act which is otherwise illegal, criminal or unlawful. Why are we getting licenses in the first place?)
Redefining marriage for gays will be a disaster for common culture, just as redefining marriage for the benefit of the sexual revolution was a disaster. That first revision — no-fault divorce — is an important cause for the debased role of women and family. Chattanooga this week is the focus of a New York Time report about poverty. Women account for two-thirds of poor people, thanks to the liberty to exit a marital union without a legal cause. The Trauger conception and that in Windsor is a third revision. The second was Roe vs. Wade.
The federal judges, the 1 percent of the 1 percent who are bringing litigation and a vast mushy middle of America are uniting in their judgment against marriage. It is old. It is antiquated. Laws for it are discriminatory and we find them lacking. The redefinition of marriage will subjectivize it, will remove it from the reality pictured in the complimentarity of bodily form, that picturing of the joining of man and wife. The results will have the power to wash aside the benefits of local economy. It will have the might to sweep away the very conception of family capital that depends on heirs and an intergenerational long-term perspective.
It attacks God’s creation and the diversity and antithesis that is Christianity.
Gay shares are at a peak, the world seems to be saying. Buy now?