Jefferson Review

"Your Liberty is Our Interest"

Home /  Archives / Search / Links / Quotes / Book Reviews / Advertise /Contact us / Subscribe / Calendar

Charles Krauthammer…and sexually challenged marriages!

By John William Kurowski , American Constitutional Research Service

I am sad to report that Charles Krauthammer has missed the most important points regarding same sex “marriage” in his column titled NOT AGAIN! Revolution by Fiat

Mr. Krauthammer writes:

“President Bush supports a constitutional amendment to define marriage as a union between a man and a woman. I am troubled by any constitutional amendment that is not about democratic governance. But the activists have forced the issue. What is the alternative to nationalized gay marriage imposed by the Supreme Judicial Court of Massachusetts? The 1996 Defense of Marriage Act? Nonsense. It pretends to allow the states to reject marriage licenses issued in other states. But there is not a chance in hell that the Supreme Court will uphold it.”

Is that so, Mr. Krauthammer? Contrary to what you think, which appears to have its roots in your mistaken understanding of our system of government, which you repeatedly identify in your columns as a “democracy”, and appears to cloud your thinking in the same sex marriage fiasco, we, as a nation, are not a “democracy”, where the majority on a court, the majority of the people, or even a majority of a legislature may rule in an unrestrained manner.

The truth is, we are a constitutionally limited Republican Form of Government as opposed to a “democracy”, and understanding this important distinction, and especially the legal rules and limits which govern our constitutionally limited system of government as opposed to a “democracy”, sheds immediate light on the validity and constitutionality of the 1996 Defense Of Marriage Act

Mr. Krauthammer asserts later in his article that:

“But because of the Full Faith and Credit clause of the Constitution (which makes every state accept "the public Acts, Records, and judicial Proceedings of every other State"), gay marriage can be imposed on the entire country by a bare majority of the state supreme court of but one state.”

What Mr. Krauthammer fails to understand is one of the most fundamental rules which governs our constitutionally limited system of government -- a rule requiring the legislative intent of a constitution, as contemplated by those who framed it and the people who adopted it, to be carried out and observed by the Court! Another important constitutional rule requires the meaning of words, as they were understood during the adoption of the constitution, to likewise be observed and enforced by the Court.

In the case of the definition of marriage, its universal meaning at the time our constitutions [state and federal] were adopted, had but one and one meaning only…a union between a male and a female. It was with this definition of marriage in mind that the various states solemnly agreed to Article 4, section 1.

So, for the SCOTUS to compel every state in our union to now accept a definition of marriage not understood or recognized by the various states during the time the constitution was adopted, and to do so because a bare majority of a state supreme court decides to attempt by its judicial authority to arbitrarily change its own state’s historical definition of marriage, the Supreme Court of the United States would have to not only invalidate the universal definition of marriage as understood by all states during their ratification of Article 4, Section 1, but likewise, the SCOTUS would have to overturn a fundamental constitutional rule requiring the definition of words to be observed as they were understood when our constitutions, state and federal, were adopted. And thus, Mr. Krauthammer has inappropriately suggested the SCOTUS will not only become a willing accomplice in the subjugation of constitutional principles engaged in by a bare majority of the Supreme Judicial Court of Massachusetts, it would more than willingly become complicit in the act by enforcing this subjugation of constitutional principles in every state in our union!

The fact is, the definition of marriage which in some states may have been derived via common law usage, but was in all states understood to be a union between one male and one female when Article 4, Section 1 was agreed to by the various states, and is binding law today, is not subject to universal change by the whims and fancies of a bare majority sitting on one state’s supreme court! The possibility does exists however that a state supreme court may find the rights and privileges connected with marriage, as recognized within its state, and applicable to a couple of different gender, is constitutionally applicable to a couple of the same gender within that state, but such a decision may not constitutionally alter the historical and constitutional definition of marriage.

While State A may be required under the full faith and credit clause to recognize a marriage consummated in State B as “evidence” in various court proceedings, such as in the collection of a debt or perhaps child support awarded to a spouse in State B, and the other spouse has fled into State A to avoid such payments, State A is obligated to recognize the marriage as “evidence” in the collection of such judgment, but not required to afford the rights and privileges of marriage as recognized by State B within its State if the licensing of that marriage conflicts with its own state laws.

In our system of law, the definition of marriage [a couple of opposite gender] has a very long history, was adopted by the people within the various states with a variety of specific intentions, and there are numerous legislative acts and court decisions which have been handed down dependent upon the historical definition of marriage. To now alter the meaning of marriage by court decree, and without revisiting each and every state law enacted and court decision previously made with the original definition of marriage in mind, would make a mockery of our constitutionally limited system of government, which is based upon a precise meaning of words, “legislative intent”, the will of the people, and, a federal system which intentionally sought to preserve state autonomy over its internal social affairs.

It is questionable that any state can constitutionally change its own historical definition of marriage, short of amending its own state constitution, [and even this is questionable] without violating fundamental rules which govern constitutional law. But it is nothing short of a misunderstanding of our constitutional system, and the fundamental rules which guide it, to believe the SCOTUS would enforce a new meaning of marriage upon “the entire country” because a bare majority on one state supreme court has lost consciousness of the rules which govern constitutional law.

In addition, it is interesting to note that Mr. Krauthammer cites the Full Faith and Credit clause of the Constitution, and then places chief emphasis on the notion that it “makes every state accept the public Acts, Records, and judicial Proceedings of every other State“, without also acknowledging that just beneath these very words it is clearly stated that the “Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.”

The Defense Of Marriage Act (DOMA), while not interfering with the internal affairs of any particular state with regard to its own recognized definition of marriage, focuses its attention upon the relationship between states in a federal nature with regard to the rules of evidence for the enforcement of civil judgment cases, and, at the same time, it recognizes individual state sovereignty with regard to preserving public policy and the legally binding historical definition of marriage if the people therein so choose to preserve it. It does nothing more than prevent one state from forcing a contemporary definition of marriage to be practiced in another state which may be found morally or otherwise objectionable, and only allows the observance of such a marriage to be recognized for purposes of enforcing judgments made in civil proceedings in another state such as monetary awards, child support custody, etc. This legislative power seems irrefutably to be constitutionally authorized and within the powers granted to Congress by Article 4, Section 1 when it was agreed to by the states.

In closing, it is remarkable, to say the least, that Mr. Krauthammer would suggest that, in consequence of the recent decision made by the Supreme Judicial Court of Massachusetts concerning sexually challenged homosexual marriages, and the full faith and credit clause of the U.S. Constitution, that the entire country may now be in peril and obligated to observe Massachusetts’ marriage law. What is most remarkable in believing this is the fact it was Massachusetts that prevailed in the SCOTUS in refusing to observe a judicial decision of South Dakota concerning marriage, in spite of the full faith and credit clause, and prevailed because it was “against the public policy” of the state of Massachusetts, “as expressed in its statutes.” See: ANDREWS v. ANDREWS, 188 U.S. 14 (1903)

The Court stated:

“The provision of the Constitution of the United States in question is 1 of art. 4, providing that 'full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state.' The argument is that, even although the Massachusetts statute but announces a rule of public policy, in a matter purely local, nevertheless it violates this clause of the Constitution. The decree of the court of another state, it is insisted, and not the relation of the parties to the state of Massachusetts and their subjection to its lawful authority, is what the Constitution of the United States considers in requiring the state of Massachusetts to give due faith and credit to the judicial proceedings of the courts of other states. This proposition, however, must rest on the assumption that the Constitution has destroyed those rights of local self-government which it was its purpose to preserve. It, moreover, presupposes that the determination of what powers are reserved and what delegated by the Constitution is to be ascertained by a blind adherence to mere form, in disregard of the substance of things. But the settled rule is directly to the contrary.”

The court concluded:

“we conclude that no violation of the due faith and credit clause of the Constitution of the United States arose from the action of the supreme judicial court of Massachusetts in obeying the command of the state statute, and refusing to give effect to the decree of divorce in question.”

The truth is, if the people of Massachusetts are comfortable with their rulers imposing a contemporary and enlightened definition of marriage upon them and without their consent, let them wallow in their free choice to do so, but don’t expect the enlightened population of another state to accept those choices, especially when the choice defies historical records dating back thousands of years and interferes with local public policy and moral standards.

"As nightfall does not come at once, neither does oppression. In both instances there is a twilight where everything remains seemingly unchanged. And it is in such twilight that we all must be aware of change in the air - however slight - lest we become unwitting victims of darkness."___Supreme Court Justice William Douglas

[Permission is hereby given to reprint this article if credit to its author and the ACRS appears in such reprint. No copyright is claimed for quotes within the article which are public domain materials.]

Weather (Louisville) / Mapquest / Search / White Pages / Business Search / CNN / Dictionary / E-card / MSN