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David R. Usher
November 7, 2006

New Jersey legislators must not allow their state to be run by judicial fiat. Legislators should ignore the Supreme Court ruling, and instead enact legislation to protect the institution of heterosexual marriage from liberal judges who pretend that gay marriage will not destroy the institution of heterosexual marriage.

New Jersey Supreme Court judges misunderstand the equal protection clause, which does not provide either direct or equivalent rights of marriage to persons who choose to live lifestyles based on sexual practices known to be fatal to themselves and harmful to families and children.

The constitution does not guarantee equal entitlement before the law. It provides equal opportunity before the law � the opportunity to choose to live as one wishes to so long as it does not impinge on the fundamental right of choice for others.

The Lewis and Winslow v. Harris decision rests precipitously on very grave oversights and errors. One sentence from the ruling destroys the rest of the decision. The court recognized well-settled points of law, of which it admits knowledge, but pretended it did not need to observe merely because the state did not claim them. �The State does not argue that limiting marriage to the union of a man and a woman is needed to encourage procreation or to create the optimal living environment for children. Other than sustaining the traditional definition of marriage, which is not implicated in this discussion, the State has not articulated any legitimate public need for depriving committed same-sex couples of the host of benefits and privileges that are afforded to married heterosexual couples.�

The state�s attorney went to bat swinging a limp daisy on behalf of his office mate, the admittedly Very Gay New Jersey Governor McGreevey. But this does not permit the court to broadly sweep away arguments made at bench by organizations who addressed state�s interest in protecting heterosexual marriage and the civil institution thereof.

The court can not issue a rational-basis ruling in favor of simulated same-sex marriage (or whatever they want to call it in the New Jersey Star Chamber) without considering what impact the decision might have on heterosexual marriage.

Heterosexual marriage is protected by the highest constitutional standard of �strict scrutiny�. Therefore, a lower-standard rational-basis ruling in favor of same-sex �marriage� must first, at the higher standard, prove no harm to heterosexual marriage (which includes Bill of Attainder issues related to contemporary family law). As the court admitted, no arguments as to harm or impact were either given or elicited.

The decision mocks itself. The court recognized that the �plaintiffs rely on the federal cases to support the argument that they have a fundamental right to marry under our State Constitution, those cases fall far short of establishing a fundamental right to same-sex marriage.�

Then, lacking courage to brutally order what it did not recognize in the first place, the court ordered the legislature to make fictitious marriage the equivalent of marriage itself.

Same-sex marriage and civil substitutions are unconstitutional because men and women are immutably different. Women can have babies. Men can not. This alone is enough to demonstrate why only heterosexual marriage is constitutional regardless of the standard of review applied.

To demonstrate why same-sex �marriage� fails these tests, we must look to how it will undermine or pre-empt the fundamental opportunities afforded to men and women within heterosexual marriage.

First, understand this: the Supreme Court ordered the state to create a simulation of marriage between any two women or men, regardless of sexual orientation. Whether the participants are gay or lesbian is not an issue.

The ruling is immediately suspect because it was not narrowly tailored. The litigants were gay men using sexual orientation as the argument the court subsequently applied in ordering the state legislature to create a fictional institution of marriage, regardless of sexual orientation, which is far beyond the scope of relief the litigants sought.

Under existing civil law, if any two women were permitted to �marry,� they would have sole automatic right to custody of any children borne into the marriage. The men they impregnate themselves with (who have no opportunity to participate in the marriage) are immediately subordinated as child support debtors and procedurally denied the natural right of parenthood.

The inequities become grave when we consider how federal and state entitlements would impact women�s marital decisions. We already know that welfare and other entitlements stimulate out-of-wedlock births to the direct detriment of marriage.

If our two �married� women had four children by four different men, this family would be entitled to four sets of child support orders in addition to the incomes of the two women. A heterosexual family with four children can not similarly benefit from these four additional �child support� incomes. Where child support can amount to a very large sum of money, it is clear that this economic advantage would drive marital choices of women � always to the detriment of men who have no choices at all.

The Bill of Attainder must be included in the evaluation. Many disenfranchised men would have large child support obligations forced on them against their will, for which heavy state and federal civil and criminal penalties apply if they are unable to meet them.

Where the State and the Federal government has already entitled child-bearing by women outside marriage, women can not be permitted to replace men as the other marital participant without immediately denying men the opportunities and rights heterosexual marriage provides them before the law.

Does anyone believe it is constitutional to create a two-tiered society consisting of free-wheeling entitled women, and disestablished men who only choice is economic bondage or prison?

When we compare �marriages� between two men versus two women, we see they would be the most disparate. Male marital partners could not possibly have natural children or raise them. Parental rights would neither be natural nor automatic. They would have to sue each mother to secure back-of-the-bus rights to �visitation.� They could also adopt, but this is not a substitute for a constitutional right to reproduce and raise one�s own children. These �marriages� would likely suffer the economic drain of at least two child support orders, making them weaker than heterosexual or �hyper-feminist� marriages.

The New Jersey order would have serious consequences on sexual behavior. When women are driven to marry women, more of them will become lesbians. When men have no choice but to marry men, more will invariably become gays. Studies show that gay lifestyles are unhealthy. The average gay man has 800% more sexual partners than a heterosexual one. On what basis can any Supreme Court base �marriage rights� on a sexual disorder?

The New Jersey legislature has a self-evident duty to disregard the order of its Supreme Court, instead enacting legislation to protect heterosexual marriage as expressed in the following principles. Inclusion of these elements in New Jersey�s definition of marriage would effectively nullify the recent ruling and make it impossible for the Supreme Court to entertain future cases that would destroy marriage.

1. Heterosexual marriage is exclusively constitutional because it erases all physical, social, societal, and culturally-imposed differences between the two sexes; which if modified to recognize homosexual or same-sex living choices either by name or equivalency, would constitute an unlawful magnification of immutable differences between the sexes and establish discriminatory treatment of one or both sexes before the law, and

2. Heterosexual marriage guarantees the equal opportunity for all citizens, regardless of sex, to have children and to raise them absent unnecessary governmental intrusion; and to freely participate in the natural social institutions of family and society, and

3. Heterosexual marriage has been demonstrated to result in the best outcomes for children. Heterosexual marriage produces the lowest mortality, suicide, and poverty rates for both adults and children. It results in the highest health and medical insurance coverage rates, and the lowest social welfare demands against the State of New Jersey and its citizens.

The danger of the situation in New Jersey is immense. Radical feminists have been edging boys out of the educational system and driving men out of marriage since 1960. At stake is whether or not marriage will be transformed into a predatory political matriarchy in New Jersey that will unquestionably result in large numbers of troubled children and disenfranchised, unruly, unattached, discontented, and criminal men.

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If the New Jersey legislature fails to take prompt action, the citizens of should quickly effect the necessary marriage protections via the Initiative process. Legislators who fail to actively rise to this task should be turned out of office on November 7th.

Justices Albin, LaVecchia, Wallace, and Rivera-Soto are among the most dangerous, anti-family judges in America. They should not be retained, and should be removed from the Supreme Court at the earliest possible moment.

� 2006 David Usher - All Rights Reserved

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David R. Usher is Legislative Analyst for the American Coalition for Fathers and Children, Missouri Coalition and is a co-founder and past Secretary of the American Coalition for Fathers and Children.












First, understand this: the Supreme Court ordered the state to create a simulation of marriage between any two women or men, regardless of sexual orientation.