February 28, 2011
By now most everyone has heard of Barack Obama’s declaration, through Attorney General Eric Holder, that he has the power to pick and choose which laws he will enforce and which ones he will not enforce. Not only does he believe he can choose which laws he will not enforce he also has assumed the power of the Judiciary to make determinations as to which laws are constitutional. If arrogance had weight this man would be worth his weight in gold.
His logic is that because the Defense of Marriage Act (DOMA) defined the “definition of Marriage” as a legal union between a man and a woman -- it denotes that sexual-orientation as a basis for marriage is irrational and runs afoul of the equal protections of the Constitution.
First of all DOMA did not define the term marriage but merely codified what was already common knowledge and practice throughout society. This is not something that was defined in the last fifty years but has been defined this way for centuries.
The Bouvier Law Dictionary entitled -- “A LAW DICTIONARY ADAPTED TO THE CONSTITUTION AND LAWS OF THE UNITED STATES OF AMERICA AND OF THE SEVERAL STATES OF THE AMERICAN UNION” from 1856 – defines marriage as: “A contract made in due form of law, by which a free man and a free woman reciprocally engage to live with each other during their joint lives, in the union which ought to exist between husband and wife. By the terms freeman and freewoman in this definition are meant, not only that they are free and not slaves, but also that they are clear of all bars to a lawful marriage.”
So the use of the definition of marriage between a man and a woman has been used long before DOMA came along and has never been anything other than this definition for as long as this nation has been in existence. Because someone wants it to mean something else is irrelevant.
I will admit up front that I am not against protecting the love any two people have for one another. If they wish to devote themselves to another and willingly desire to live their lives as such then I wish them all that happiness they so richly deserve. I also think they should be able to participate in all aspects of the civil society to include joint ownership, inheritance, spousal visitation, and legal accommodation. But it should not be called something it is not.
Dealing with definitions, which Mr. Obama’s position is dependent, is a position that I feel is not supportable and probably why it has failed up to this point and will do so again.
As an example – I am very fond of the Oak tree. I find it a great specimen of nature embodying great strength and beauty. In my front yard is a great Blue Spruce that towers about 60 feet and it is a magnificent tree but it is not an Oak. I may call it an Oak and send pictures to all my friends of my new “Oak tree,” but in the end it is still a Blue Spruce.
Calling a union between two people of the same sex a “marriage” may have individual significance for the couple and their friends but it cannot be what it is not regardless of what they wish it to be or what they may call it.
The Obama declaration goes on to dismiss as unreasonable the idea that marriage could have anything to do with “procreational responsibility.” Really? I always believed that one of the prime motivators for government getting involved in marriage was to ensure not only equality between the races, (Loving V Virginia, 388 US1, June 12, 1967), but also parental rights and the importance of that responsibility but especially not to redefine the meaning of marriage.
Supreme Court case law is replete with examples of “procreational responsibility” which is, after all, the fruits of the marriage. For examples see: Meyer V Nebraska (1923), Skinner V Oklahoma (1942) – “Marriage and procreation are fundamental to the very existence and survival of the race.” Prince V Massachusetts (1942), Wisconsin V Yonder (1972), Cleveland Board of Education v La Fleur (1974) – “fundamentally affecting a person as the decision whether to bear or beget a child."
Prior to this, and especially prior to the 20th century, many states outlawed interracial marriages, though there was no requirement for marriage licenses in many states, even though it was illegal to marry interracially. In 1911 the “Uniform Marriage and Marriage License Act” was introduced to provide for uniform licensing requirements across the states as well as to outlaw common law marriage, also known as cohabitation marriage.
The common thread between all these marriage issues was that it was between a man and a woman -- always has been.
To further emphasis that the use of the term marriage in law has been traditionally and legally between a man and a woman is the definition found on the online legal dictionary “lectlaw.com,” which states: “A contract made in due form of law, by which a free man and a free woman reciprocally engage to live with each other during their joint lives, in the union which ought to exist between husband and wife. By the terms freeman and freewoman in this definition are meant, not only that they are free and not slaves, but also that they are clear of all bars to a lawful marriage.”
Again the marriage definition as found at legal-dictionary.thefreedictionary.com provides the following: “The legal status, condition. Or relationship that results from a contract by which on man and one woman, who have the capacity to enter into such an agreement, mutually promise to live together in the relationship of Husband and Wife in law for live, or until the legal termination of the relationship.”
Again affirming the tradition and definition of marriage between a man and a woman.
To be fair there is also a modern definition found in the Marriam-Webster (online) dictionary that states: “a(1) the state of being united to a person of the opposite sex as husband and wife in a consensual and contractual relationship recognized by law (2): the state of being united to a person of the same sex in a relationship like that of a traditional marriage.”
So even in the common definition of the modern language usage there exists a separation of the original definition of marriage, a man and a woman, to that of a same sex relationship that is something “like that of a traditional marriage” but in reality is only a comparison of what it is similar too.
I find it interesting that during Obama’s campaign he ran on the platform of recognizing the traditional definition of marriage being between a man and a woman. Now that we have entered the latter half of his first term in office and a long battle toward 2012 campaign for reelection, he moves away from that position to a more liberal interpretation.
Being that Mr. Obama is a Constitutional Scholar and ivy league lawyer we would have to assume that he knows the legal definition of marriage but chooses to ignore that fact or he just thinks we are too stupid to pick up on it.
One has to wonder – was he telling the truth during his original campaign as to what he thinks of marriage or is he telling the truth now? Either way, someone that knows so much about law and history to flip-flop their core beliefs on something as important as the definition marriage, can we trust what he says on any other issues knowing they can change so easily and in such a short period of time?
Subscribe to the NewsWithViews Daily News Alerts!
Same sex unions cannot be a marriage any more than a Blue Spruce can be an Oak. We can call a Blue Spruce an Oak all day long and it will not change the fact that it is still a Blue Spruce. We can provide the protections and legal standing to accommodate same sex unions to allow for taxes, medical rights, and all the rest with little opposition. But there will always be opposition to redefining something as fundamental to our history as the institution we call marriage.