Federal Government involvement in marriage?

 

 

A Review of the Proposed Amendment

to the

United States Constitution

Regarding

Marriage

by

Scott N. Bradley

July 2004

 

 

I believe that an amendment at the State level in support of “traditional” marriage is appropriate and sound, but hold grave concerns in regards to an amendment at the national level.  Further, I believe that the United States Constitution currently contains a solution to the polluted perspectives on marriage and the family (and many other topics) which have been emanating from various sources in recent years, and that the existing “constitutional” solution may be implemented more surely and immediately than what could be hoped for by following the Article V amendment process which is defined in the United States Constitution.  In addition, I am convinced that the amendment approach which is suggested at the national level is fraught with dangers which will ultimately place at even greater risk many of our most cherished institutions—especially the family—and our individual liberties which were vouched safe within the Constitution as originally brought forth under the inspiration of God.

 

From my perspective, the train of logic in recent months which has led to the conclusion that a national “Marriage Amendment” is necessary is sowing seeds which will lead to undermining  the Constitution, because the people will come to believe that our Constitution is filled with flaws which must be corrected by amendment or by constitutional convention.

 

Perhaps a brief review of the perspective from which I view this matter would help set the framework for my concerns, and for the solution which I believe is embodied within the Constitution.  I have taken President Ezra Taft Benson’s advice to seek to uphold the United States Constitution “in the tradition of the Founding Fathers” (“Our Divine Constitution,” November 1987 Ensign, p. 7), so it is from that perspective that I approach this issue.

 

The United States Constitution is The Charter of the Nation.  It defines the framework of the government which it establishes.  It delegates authority to act in specific areas.  It establishes the boundaries within which our national government may act.  It is not a grant of unlimited power to act carte blanch (with unrestricted discretion).  The primary purpose of our Constitution is to protect the people in their God-given unalienable rights, while delegating to the national government the powers necessary to perform that which is appropriate to that level of government, and no more.

 

The value of a written constitution is beyond measure.  Words have meaning, and those meanings may be known.  They are not open to arbitrary and unilateral interpretation or redefinition by those who would modify the Constitution to meet their whims.  The words and the intended scope of the government was clearly established by those who framed the Constitution.

 

In his 1828 dictionary, Noah Webster, one of the Founding Fathers, defined constitution thus:

 

“In  free states, the constitution is paramount to the statutes or laws enacted by the legislature, limiting and controlling its power; and in the United States, the legislature is created, and its powers designated, by the constitution.”

 

The word paramount means: “Of chief rank or importance; primary; foremost; superior.”  In other words, the Constitution is superior to and takes precedence over all enactments of any legislature.  No act of the government may legally override the Constitution.  Only those laws which are enacted under the terms defined by the Constitution are enforceable as legal.  Every section of the established government is empowered to act only within the scope of power allowed within the charter of the Constitution.  If an act of the legislature contradicts the Constitution, or if the legislature or any another department or agency of the government (such as the courts) attempts to enact a “law,” or exercise a power which goes beyond the powers defined and granted within the Constitution, the act is unconstitutional, and therefore illegal, null, and void.  Numerous statements by the Founders of the Nation confirm that this was their position.

 

In recent years a gross misunderstanding has become popular: that the Constitution may be modified upon the whim of the Supreme Court (some have called the Supreme Court a “constantly sitting constitutional convention”), or by the decree of a President, or by the vote of Congress.  These philosophies defy all logic, reason, and firmly established constitutional principle.  And yet, this position is fostered today by those whom the Founders of the Nation warned against.

 

Those who founded the United States understood well the concepts and inherent safety embodied in a written constitution, and promoted their understanding eloquently.  Following is a review of a few brief excerpts which clarify the position of the Nation’s Founders in these matters.  Their “original intent” is clearly stated, and so may be well understood by us today if we are willing to do our research and think of the wisdom which the Nation’s Founders offered to us.

 

In Federalist Paper No. 45, James Madison, “The Father of the Constitution,” eloquently and succinctly captured the concept of the scope of the national government which was defined in the U.S. Constitution:

 

“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.”

 

United States Constitution Ninth Amendment (Americans—the people—retain all of their individual God-given rights, whether or not they are specifically enumerated in this Constitution):

 

“The enumeration, in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

 

United States Constitution Tenth Amendment (if power was not specifically assigned in the Constitution to the national government, those powers are retained by the states or the people):

 

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states, respectively, or to the people.”

 

In a speech delivered on the floor of the U.S. House on 07 February 1792, James Madison further clarified the dangers of modifying the Constitution by “interpretation.”  Today it would seem that his concerns were almost prophetic:

 

“….I, sir, have always conceived—I believe those who proposed the Constitution conceived—it is still more fully known, and more material to observe, that those who ratified the Constitution conceived—that this is not an indefinite government, deriving its powers from the general terms prefixed to the specified powers—but a limited government, tied down to the specified powers, which explain and define the general terms….”

 

In 1803, Thomas Jefferson expressed his concerns with the suggestion that new meanings be incorporated into the Constitution by “re-construction” and interpretation:

 

“When an instrument admits two constructions, the one safe, the other dangerous, the one precise, the other indefinite, I prefer that which is safe and precise. I had rather ask an enlargement of power from the nation, where it is found necessary, than to assume it by a construction which would make our powers boundless. Our peculiar security is in the possession of a written Constitution. Let us not make it a blank paper by construction.” [The Writings of Thomas Jefferson. Edited by Bergh 10:418. (1803.)]

 

Without belaboring the point with additional quotations from the Founding Fathers, perhaps it will suffice to say that those who framed the government of this Nation intended the bounds of the national government to be limited to the specific powers which were delegated to that government within the Constitution.  The point in the case we are considering herein is that under the United States Constitution, the national government was never intended to exercise jurisdiction over the family unit.  Marriage is not currently within the purview of the national government.  An amendment at the national level would unequivocally result in a constitutional avenue by which the national government could claim some measure of jurisdiction within the family unit, and almost certainly would result, over time, in a growing influence and interference within the home by the national government.

 

I believe that change would ultimately result in grievous danger to the sacred and eternal family unit.  I do not believe that it is possible for mortal man to fully measure the risk of such a development.

 

The Constitution was the work of men who were raised up and placed on earth by God for the very purpose of creating this marvelous document, which captures God’s intent for proper mortal government.  The Founders of the Nation who were there-present during the proceedings of the Constitutional Convention of 1787 recognized the hand of God in the effort, and understood that their accomplishments were beyond their natural abilities!

 

George Washington later wrote his feelings about this, saying that he felt he observed “the finger of Providence” in the effort to frame the Constitution. [letter to the Marquis de Lafayette.  The Writings of George Washington.  Edited by Fitzpatrick 29:507. (1788.)]

 

Washington also said that he could “trace the fingers of Providence through those dark and mysterious events which first induced the states to appoint a general convention, and then led them one after another…into an adoption of the system recommended by that general convention…” [letter to Jonathan Trumbull. Fitzpatrick 30:22. (1788.)]

 

And in his First Inaugural Address George Washington said he recognized the “great Author,” and “invisible hand,” and “providential agency” that brought this new system of government into being.

 

And in Federalist Number 37, in speaking of the outcome of the Constitutional Convention of 1787, James Madison stated:

 

“The real wonder is that so many difficulties should have been surmounted, and surmounted with a unanimity almost as unprecedented as it must have been unexpected. It is impossible for any man of candor to reflect on this circumstance without partaking of the astonishment. It is impossible for the man of pious reflection not to perceive in it a finger of that Almighty handwhich has been so frequently and signally extended to our relief in the critical stages of the revolution.” (Emphasis added).

And, of course, modern-day revelation states unequivocally the Lord’s position on this matter:

 

In August, 1833, in Doctrine and Covenants 98:4-7 the Lord stated:

 

4 And now, verily I say unto you concerning the laws of the land, it is my will that my people should observe to do all things whatsoever I command them.

 

5 And that law of the land which is constitutional, supporting that principle of freedom in maintaining rights and privileges, belongs to all mankind, and is justifiable before me.

 

6 Therefore, I, the Lord, justify you, and your brethren of my church, in befriending that law which is the constitutional law of the land;

 

7 And as pertaining to law of man, whatsoever is more or less than this, cometh of evil.

 

Of course, we know that the Lord, in His wisdom, establishes the bounds of all things proper, and that wisdom dictates we abide within those bounds.  Has the Lord set the bounds in this matter of proper government by stating that whatsoever is more or less than the Constitution would violate His established bounds?

 

In December, 1833, the Lord revealed the following in Doctrine and Covenants 101:77-80:

 

77 According to the laws and constitution of the people, which I have suffered to be established, and should be maintained for the rights and protection of all flesh, according to just and holy principles;

 

78 That every man may act in doctrine and principle pertaining to futurity, according to the moral agency which I have given unto him, that every man may be accountable for his own sins in the day of judgment.

 

79 Therefore, it is not right that any man should be in bondage one to another.

 

80 And for this purpose have I established the Constitution of this land, by the hands of wise men whom I have raised up unto this very purpose, and redeemed the land by the shedding of blood.

 

The Prophet Joseph Smith testified that the Savior revealed to him the dedicatory prayer of the Kirtland Temple.  That dedicatory prayer is recorded as Doctrine and Covenants section 109.  Verse 54 of that section reads:

 

54 Have mercy, O Lord, upon all the nations of the earth; have mercy upon the rulers of our land; may those principles, which were so honorably and nobly defended, namely, the Constitution of our land, by our fathers, be established forever. (Emphasis added)

 

Among his many statements on the Constitution, Joseph Smith declared:

 

“We say that God is true, that the Constitution of the United States is true, that the Bible is true, the Book of Mormon is true, that Christ is true…”  (Times and Seasons vol. 1, page 134; also,Teachings of the Prophet Joseph Smith, pg. 148)

 

It is of interest and note to me the close association which Joseph Smith makes with these great and important truths!

 

Among the many testimonies of Brigham Young regarding the United States Constitution is his following statement:

 

“I want to say to every man, the Constitution of the United States, as formed by our fathers, was dictated, was revealed, was put into their hearts by the Almighty, who sits enthroned in the midst of the heavens; although unknown to them, it was dictated by the revelations of Jesus Christ, and I tell you in the name of Jesus Christ, it is as good as I could ask for.” [Henry, D. “The Prophets on the Christ.”  Liahona: The Elders’ Journal (26 Dec 1908) 6:678; also in Roberts, B. H.Mormonism, 27-28]

 

What an incredible endorsement!

 

In addition, several of the latter-day prophets have asserted that the United States Constitution is part of their religion, and that “its words are akin to the revelations of God, for God has placed His stamp of approval upon it.”  (See Ezra Taft Benson’s “Our Divine Constitution,” October 1987 Conference Report, and November 1987 Ensign magazine, p. 7)

 

Were space and time permitting, we could review many hundreds of statements by latter-day prophets which endorse the United States Constitution.  This has been a major theme by the Lord’s anointed–from the Prophet Joseph Smith to our current prophet.  They have expressed their love of the document and the principles upon which this Nation was founded.

 

It is interesting to note that even the charter establishing the city of Nauvoo mentions the United States Constitution seven times.

 

In over 30 years of diligent searching, I have never discovered a shred of evidence that the Lord, through His latter-day prophets, has endorsed any other form of government.  Only in-so-far as other governments have emulated the United States Constitution has there been a measure of acceptance.

 

And those the Lord has called to be His mouthpiece on the earth have spoken many eloquent and powerful words of warning against false forms of government which flourish both here at home andabroad.

 

Perhaps I may quote only one relatively recent statement which President Gordon B. Hinckley made regarding his views of this Nation’s Founders and their principles:

 

“A news magazine writer asked me the other day during an interview concerning my belief in the Constitution of our country.  I replied that I felt it was inspired.  That both the Declaration of Independence and the Constitution of the United States were brought forth under the inspiration of God, to establish and sustain the freedom of the people of this Nation.  I told him that I looked upon the Founding Fathers as men who believed in God, as men who prayed to God, as men who recognized God, and wished to do His will.  What a singular and remarkable group they were.  As I look across the world today I search in vain for such a group as walked together across the stage of history, when this Nation was born….

 

Just think for a moment of George Washington, of Franklin, of Madison, of the Adams, of Thomas Jefferson and their associates who signed the Declaration of Independence, or participated in the Constitutional Convention.  Where in all the world today can even one or two such men be found, let alone the great aggregation who participated in the birth of America?  Can anyone deny that they were raised up unto this very purpose?  That working together they brought forth on this continent an independent nation, at the risk of their lives, their fortunes, and their sacred honor.  It is my conviction that while we’ve had a few great leaders since then, there has not been before or since so large a group of talented, able and dedicated men, as those who we call the Founding Fathers of this Nation.  For as long as they lived they acknowledged the hand of the Almighty in the affairs of this Republic.”  (President Gordon B. Hinckley, Fireside Address, BYU Marriott Center, 29 June 1997; also Standing for Something, pg xv)

 

So said President Hinckley.

 

By-the-way, President Benson warned us that those who cast doubt about the character of the Founding Fathers of this Nation will, in his words, “have to answer to the God of Heaven.”  (This Nation Shall Endure.  Deseret Book Co. 1977.  pg.18) Do we denigrate the Founders when we cast such doubts upon their words and works that we cause a movement to flourish which would undermine their inspired words and works and replace them with modern philosophies which are not endorsed by God?

 

It is my firm conviction that we do not have the wisdom to improve upon the dictates of God.  As noted above, President Hinckley said, “It is my conviction that while we’ve had a few great leaders since then, there has not been before or since so large a group of talented, able and dedicated men, as those who we call the Founding Fathers of this Nation.”  Dare we risk losing the delicate delegation of powers and authority (and inferred proscriptions of interference and involvement) by modifying the Constitution in such a manner as has been proposed?

 

Additionally, it is my firm conviction that, whether the Founders were aware of the exact purposes of God or not in the writing of the Constitution, God planted within the Constitution the tools and processes for its preservation and defense.  (See verses 3-7 of The Words of Mormon in The Book of Mormon, with particular emphasis on verse 7, for a review of how the Lord’s foresight preserved the message of The Book of Mormon in spite of the loss of the 116 page manuscript.)

 

Certainly Article III, Section 2 Clause 2 of the United States Constitution could fall into this category.  It states specifically:

 

“In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”

 

Regardless of opinions to the contrary, the United States Constitution actually states: “…with such Exceptions, and under such Regulations as the Congress shall make.”  We often speak of the “checks and balances” that were so wisely written into the document to prevent power from being consolidated into tyranny, but almost no one recognizes this “check” which may be exercised to balance against a usurping court.

 

And, of course, elsewhere the Constitution delegates to the Congress authority over the existence of all federal courts inferior to the Supreme Court (see Article I Section 8 clause 9 and Article III Section 1).  While Article III Section 2 of the United States Constitution delegates specific authority for Supreme Court involvement in certain specified instances, it seems certain that in cases not specifically enumerated within the Constitution that the United States Congress has the authority to rein in the rogue court system which currently exists by simple majority vote in both the House and Senate.  By exercising this rarely-used authority, the United States Congress could remove all cases involving the marriage issue from the purview of the federal court system.

 

 

An example of how this could be accomplished is found in the 1868 Exparte McCardle case, which was taken to the Supreme Court by an individual seeking relief from an onerous act of Congress (but which act Congress had, under authority of Article III Section 2 clause 2, prohibited from being reviewed by the Supreme Court).  Following is the relevant excerpt from the declaration the Supreme Court made when McCardle sought to bring the case to them for redress:

 

​”We are not at liberty to inquire into the motives of the legislature.

We can only examine into its power under the Constitution; and the power to

make exceptions to the appellate jurisdiction of this court is given by

express words…. It is quite clear, therefore, that this court cannot proceed

to pronounce judgment in this case, for it has no longer jurisdiction of

the appeal; and judicial duty is not less fitly performed by declining

ungranted jurisdiction than in exercising firmly that which the Constitution and

the laws confer.”

 

 

The irony is that this unanimous1868 Supreme Court decision is a good decision upholding a perfectly repellent act of Congress.

 

While this approach has been rarely used, and some would deny that the authority of Congress to act in such a manner is granted within the Constitution, it is there for all to read, and only awaits a courageous Congress to act upon it.

 

It is interesting to note that even among those who deny the effectiveness of such an approach, there is a grudging admission that this safety valve exists.  An example may be found in a recent article which was written by BYU law professor Richard Wilkins, one of the most ardent advocates of a federal “Marriage Amendment”:

 

“Article III of the Constitution indeed provides that

Congress can eliminate the jurisdiction of lower federal

courts (and the Supreme Court) over marriage.”  (Richard Wilkins

March 5, 2004, World Net Daily)

 

While professor Wilkins continues in his article (see comments in enclosed attachment) to expound upon problems he perceives with this approach, and to promote the “Marriage Amendment,” I believe that those concerns could be fully and satisfactorily addressed—allowing us to keep the family and marriage matters out of the hands of the national government.

 

Logic, reason, and historical precedent testify that the task of obtaining a simple majority in Congress is much easier than getting two-thirds of both houses and three-fourths of all the States to bring amendments forth that aren’t needed to begin with.  And the danger of seeking the amendment is magnified by huge orders of magnitude if the “good and well-meaning people” of the land become so frustrated and angry with a Congress that can’t bring them an amendment they wish to pass that they demand a constitutional convention be called.  Remember, Article V of the Constitution requires Congress to convene a convention if two-thirds of the States call for one (the Constitution says they “shall call” a convention, not that they “may call” a convention).  We are already dangerously close to that event, within only a few States.

 

Of course, the only national constitutional convention we have had in the entire history of the United States resulted in what we would call today a “runaway convention.”  While those who attended the Convention of 1787 had been called together to correct a few perceived flaws in the existing Constitution, The Articles of Confederation, they immediately saw within the purview of their authority as duly elected representatives of the people and States to set aside the existing constitution and write another one.  That is exactly what they did, and they even changed the unanimous consent required by the Articles of Confederation to a lesser level to assure easier ratification of the new constitution.  Fortunately, God had raised up men for this very purpose, and the results were endorsed by God.  Where are such men today?  Again, it is my strongly held conviction that among the prominent leaders of this Nation there is not one found who could hold a candle to the inspired works of those whom we call the Founding Fathers of this Nation.  The risk for such an action today cannot be measured.

 

The solution is to raise up a people who will uphold the document and philosophy endorsed by God and His prophets.  The solution is not to plant seeds of doubt about the form of government God inspired the Founders to establish.

 

Perhaps we are in a time which parallels the experience of the Nephites in which the lawyers and judges sought to destroy the great constitutional republic which God had inspired Mosiah to establish (see Alma chapter 10 verses 15, 17-18, 27, 32, and III Nephi 6:20-30 for examples).  It would seem timely to make known the fact that God, in His wisdom, inspired the Founders to write into the Constitution a solution to this scourge.

 

And in spite of contrary opinions, not only has Article III, Section 2, clause 2 been successfully applied in the past by the United States Congress, it may easily be applied today if Congress could be brought to exercise it by the outcry of an informed electorate.  The enclosed attachment suggests how such an act may be worded.

 

It is currently in vogue to suggest that the Constitution is somehow flawed, and that recent court cases demonstrate the truth of that position.  The real truth about “flaws” which are supposedly in the current United States Constitution is this:  Every single one of these so-called flaws have been brought about by usurpation of authority not granted by the Constitution.  The flaw is not in the Constitution—it is in those who seek power, and those who allow them to hold power.  The key to stopping this is in a courageous Congress, not in scrapping the Constitution, or in modifying it every time some tyrant seeks to usurp power not granted in God’s inspired document.  If we changed it for every whim of false philosophy which came along, we would have many thousands of amendments, and not a real Constitution.

In regards to the issue of who has the responsibility (Courts? Executive? Legislature?) to assure that all things are kept within the bounds set by the Constitution: Not withstanding opinions to the contrary, the Constitution requires all elected officials to abide by it (see article VI), and the President takes a specific oath that appears to me to have grave implications for one who would not do everything in his power to uphold it:

 

“I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.” (United States Constitution Article II, Section 1) (emphasis added)

 

“…preserve, protect and defend the Constitution of the United States.”  That sounds like a specific charge to keep all things within the bounds set by the Constitution, so the President certainly has the authority (and responsibility) to act to keep all actions of the government within constitutional bounds!  The responsibility does not reside solely within the purview of the courts, as some would have us believe.

 

In addition, as you know, George Washington promoted the idea that the people were the keepers of the Constitution, and therefore an informed electorate is the key to keeping all of their representatives in line with the proper constitutional principle.  The people have a responsibility to be “constitutionalists,” and it is a tragedy when those who so many look to for help in this responsibility are sowing the seeds of misunderstanding which will ultimately result in the destruction of this marvelous God-ordained document.

 

In brief summary of this matter of the “Marriage Amendment,” I believe the following concepts are worthy of consideration:

 

* The Founding Fathers (and, in my opinion, God) did not place any jurisdiction over the family in the hands of the National government.  There is grave danger in this today.  If this amendment is enacted I can see a cabinet level position within the Executive Branch being created to give government oversight of the family if we open the door.  The original constitutional concepts of “separation of powers” and “checks and balances” considered the authority of the States, and the God-given rights of the individual.  The proposed amendment encroaches upon those essential principles.

 

* What will the proposed amendment say?  Marriage is between only a man and a woman?  At some time in the future, could some judge twist that to mean that even if a spouse died, or a divorce occurred, there could not be another marriage?  Ridiculous? Hopefully, but other court decisions are equally inane.

 

* What justification do we have in assuming that a marriage amendment would be held inviolate by courts and legislatures?  To date, the only amendment which seems to be upheld in this land is the III Amendment (quartering of troops).  Extreme and almost countless violations of every single one of the rest of the Bill of Rights could be cited.  The Tenth Amendment is probably the most violated amendment currently in existence.  Why should we expect the “Marriage Amendment” to suffer a different fate?

 

* Proper and timely application of Article III, Section 2, clause 2 of the United States Constitution could preclude the federal judiciary from ever involving themselves in the matter, including the Article IV Sections 1 and 2 issues.  The marriage issue could be kept entirely out of the jurisdiction of the federal judges, or federal agencies which would surely evolve.

* No impossible dream of obtaining approval of two-thirds of both houses of Congress, and three-fourths of all States to enact the proposed “Marriage Amendment” would be necessary.

 

* No danger would be created for the “good and well-meaning people” to cry out for a constitutional convention in which we would surely destroy our existing Constitution.

 

The Prophet Joseph Smith said: “It is our duty to concentrate all our influence to make popular that which is sound and good, and unpopular that which is unsound.  ‘Tis right, politically, for a man who has influence to use it….From henceforth I will maintain all the influence I can get.”  (History of the Church, 5:286).  Perhaps this marriage issue has a “sound and good” approach, and an “unsound” approach.  If it does, let us work to make the “sound and good” approach popular, and the “unsound” approach unpopular.

 

Perhaps you recall the scene from “A Man for All Seasons” in which Thomas More rebukes his son-in-law for wanting to cut down the laws to get to the Devil.  I believe that modifying the Constitution in the manner suggested will, in a very real way, apply to Thomas More’s warning remark.  It would seem that we need to consider the very real prospect of what will happen to our families, and even the Church, once we’ve cut down what remains of our constitutional protections, and we have a national government which would have constitutional authority to encroach into the very hearts of our families.  What will we do when the last vestiges of the delicate checks and balances have been abolished, and all power is accrued to Washington?  Thomas Jefferson’s eloquent warning should awaken within us grave concerns:

 

“When all government, domestic and foreign, in little as in great things, shall be drawn to Washington as the center of all power, it will render powerless the checks provided of one government on another, and will become as venal and oppressive as the government from which we separated.” [Bergh 15:332. (1821.)]

There is so much more that could be said, but suffice it to say, I am very concerned that efforts to legitimize federal intrusion into the family circle by way of a federal amendment to the United States Constitution could ultimately have grave consequences for the effort to preserve the United States Constitution in the tradition of the Founding Fathers and, most assuredly, for the family itself.

Enclosure: Marriage Amendment Details and Solution

 

 

 

Enclosure

Marriage Amendment Details and Solution

 

Wording of Proposed Amendment:

 

“Marriage in the United States shall consist only of a man and a woman.  Neither this Constitution, nor the constitution of any State, shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman.”

 

Re-wording Sought by Key Backers of the Amendment to Expand Congressional Support for the Proposal (as reported in the Washington Post 23 March 2004):

 

While the exact re-wording has not been agreed upon, the intent of the re-wording would be to allow states to establish civil unions or other partnerships for same-sex couples.  It has been reported that President Bush has indicated that he would not oppose such a change in order to broaden support for the amendment.

 

The article by BYU law professor Richard Wilkins which was referred to in the body of the enclosed document deemed national uniformity so critical to this issue that it was proposed that only a national amendment would suffice.  The proposed language change would absolutely result in non-uniformity from state to state, and therefore defeat the stated purpose of the proposed amendment.

 

If the re-wording were adopted as the accepted amendment wording, each state would ultimately be faced with Article IV Section 1 and Article IV Section 2 clause 1 (“Full Faith and Credit”) challenges—due to the fact that some states would unquestionably pass laws allowing same-sex unions which have the endorsement of that particular state, and those couples would most likely take on states which did not recognize their union.  What will we have gained but more confusion that will most assuredly (and absurdly) be endorsed by twisted court rulings?

 

The “Marriage Amendment” which is currently proposed to the Constitution of The State of Utah could be open to challenge, and could ultimately be ruled “unconstitutional” if challenged in a federal court if the proposed re-wording were adopted.

 

Possible Wording of Congressional Act Which Would Remove All Cases Involving Marriage From the Jurisdiction of Federal Courts:

 

“The appellate jurisdiction of the Supreme Court and the jurisdictions of the inferior federal courts shall not extend to hearing or determining the power of a state to define and regulate marriage.  Such jurisdictions shall not extend to hearing nor determining the refusal of any state to give full faith and credit to any marriage or other civil union performed or recognized under the law of any other state.”

 

This approach applies the U.S. Constitution “in the tradition of the Founding Fathers.”  It recognizes and applies the Congressional authority over the courts as allowed and found in Article I Section 8 clause 9, Article III Section 2 clause 2, and Article IV Section 1.

 

No “Full Faith and Credit” complaints could be taken to the federal courts, and the power to encroach into the family would be kept out of the hands of the federal government.  Each State would be responsible before God for their actions.

 

Some states would probably foolishly go forward with laws allowing same-sex unions, but they would not be forced upon other states which kept the God-ordained family sacred.

 

John Adams (the principle author of the Massachusetts Constitution, the first Vice President of the United States, and the second President) said: “Our Constitution was made only for a moral and religious people.  It is wholly inadequate to the government of any other.”  (The Works of John Adams, ed. C.F. Adams, Boston: Little, Brown Co., 1851, 4:31).  True words, and essential to the survival of the Nation!