Why Did We Vote on This?

Wednesday Morning Quarterbacking about Marriage

I've got to hand it to Arizona. They had the common sense to say no. Wisconsin may be the first state to adopt a constitutional amendment concerning the definition of marriage, with less than 60% voting in favor. That distinction pales by comparison. We are seeing the first hopeful signs that sanity may yet return to this hysterical debate. Two older women passengers on the Milwaukee paratransit system gave the best spontaneous insights into the insidious amendment proposal:

"If God said it, we don't get to vote on it. So why are we voting on it?"

"This is too confusing. There has to be some purpose they're not telling us about."

One transparent purpose they didn't openly mention in Wisconsin failed to come true. The amendment was not the wedge for a Republican sweep of the elections. Voters split their tickets in all kinds of ways, with great sophistication. One congressional district even tipped to the Democrats. A fair number of people who voted "Yes" seem to have voted AS IF the referendum were a simple question: "Is marriage the union of one man and one woman?" That would have gotten about a 70% yes vote. It is not what the legislature presented to the people for ratification.

Still, it is odd that those who claim to know what God ordained wanted us to vote on it!. One might have expected those who claim marriage can mean anything we want it to mean to push for a vote. It is strange that so many pastors and churches thought it worthy of their attention. There has never been a time when any political body was so anxious to pass a constitutional amendment to provide that things are going to stay the way they are now. Nor has there been a time when opposition was so aroused on the ground that if the amendment is voted down, nothing will change. For its stated purpose, it would have been hard to write a more twisted and uncertain set of sentences. There would have been no harm in sending the whole thing back to the drawing board until the authors could get it right.

But the most dangerous thing about the rash of state constitutional amendments on this subject is that it takes the courts off the hook. Paranoia about "activist judges" inspires many to nail the absurd debate about marriage into an airtight coffin, without bothering to drive a stake through the heart of the controversy. Yes, the famous ruling by the Supreme Court of Massachusetts was ridiculous. But no court, no state attorney general, nobody from Liberty Counsel or American Center for Law and Justice, has come close to dissecting what the court's error really was. Instead of doing the hard work of clearing the air, everyone is looking for airtight compartments to seal off the real questions that remain unresolved.

It is a general and accepted practice in drafting legislation, and in legal reasoning, to begin by defining the terms of the controversy. There is no case on record where any judicial opinion began by defining the term "marriage." Advocates of expanding the definition have cleverly made the definition the end result of their argument, rather than addressing it at the beginning.

If any judge began by looking the word up in a standard Webster's dictionary, or in Black's Law Dictionary, every available definition would focus on male and female. On that basis, a court could examine with some clarity whether any individual man or woman has been denied equal protection of the laws. The answer would be, no. No male, and no female, has been denied equal access to the status of marriage. The fatuous claim that homosexuals are a "class" of persons who are "excluded" from a deliberately undefined status, vaguely referenced as "marriage," would fall flat on its face. Homosexuals are not a class at all. Marriage laws take no notice of such a condition – unlike skin color, race, nationality, religion, etc. Throughout history, thousands of "homosexuals" have been married in the traditional sense – to individuals of the opposite gender.

Some individuals simply do not desire to enter into the historically constituted partnership known as marriage. They desire to enter into other partnerships. So be it. Those partnerships are what they are. However loving, they are not marriage. And, as anyone looking at it from a Judeo-Christian tradition would recognize, they do not reunite the Adam. They do not bring together the two parts into which the image of God was divided. (Courts in the United States cannot make rulings about the image of God. It is outside their jurisdiction. Spiritual matters are protected by the First Amendment from the profane hand of the civil magistrate.)

This needs to be presented to the courts, stripped of the obfuscation wrapped around most arguments submitted so far. The courts need to clean up the controversy. It needs to be settled, not walled off behind hasty constitutional amendments. Good arguments and bad arguments need to be laid out, examined, publicly displayed, and thoroughly recognized for what they are. No short cuts. So far, the best arguments have not even been submitted to a court of competent jurisdiction.

Once we settle that marriage is marriage, and nothing else, there is no reason we cannot provide by law for individuals to make and register their own choices for hospital visitation rights, joint ownership of property, shared obligations for children. There is no reason for the government to take any notice of the motives. There is no reason the community as a whole must formally acknowledge or celebrate individual choices that deviate from the norm for the human race, any more than we need to persecute such deviations. It simply isn't a marriage.If the Metropolitan Baptist Church wants to celebrate such partnerships as a marriage, they have a right to do so. The Southern Baptist Convention is under no obligation to do likewise. That is called free exercise of religion.