Dr. Val Farmer
Rural Mental Health & Family Relationships

Do We Want To Legalize Same Sex Marriage?

December 8, 2003

Richard Wilkins is a professor of law at Brigham Young University. He is an internationally recognized expert on legal issues related to marriage and the family. He is also the managing director of BYU's World Family Policy Center. He chairs an organization called Defend Marriage.

This organization recently published a newsletter about the recent court decision in Massachusetts about same sex marriage. This are Professor Wilkins' comments on the court ruling.

"The Massachusetts Supreme Judicial Court on November 18th ruled by a 4 to 3 vote in the case of Goodridge v Department of Health that the commonwealth's law limiting marriage to a man and a woman violated the state constitution. The court stayed its decision for 180 days to give the legislature time to comply with its decision, though the decision makes clear that authorizing "same sex unions," as Vermont did in response to a similar verdict several years ago, will not satisfy the ruling. It is unclear what the legislature can do to comply except legalize same sex marriage, an action that Massachusetts Governor Mitt Romney has vowed to veto.

"The only other alternative available to avoid legalizing same sex marriage is to amend the state constitution to clearly limit marriage to the union of a man and a woman. The provisions for doing that in the commonwealth, however, require that such an amendment be considered by two successive legislatures before being put to a vote. As a result, even starting an amendment process now would mean no vote before 2006.

"Although the ruling was expected, the justifications the majority offered to support it are both noteworthy and a cause for real concern. While the decision nominally construes the state constitution, the overwhelming majority of the authority cited consists of U.S. Supreme Court cases construing the federal constitution. In particular, the state court relied heavily on the reasoning of the majority in the recent Lawrence case overturning Texas' anti-sodomy law. The majority on the state court also cited recent Canadian court decisions legalizing same sex marriage in two provinces in that country.

"What the court essentially found was that "the everyday meaning of marriage" is "arbitrary and capricious." In lay terms, the court found that this "everyday meaning of marriage" was essentially irrational. This is an astounding finding, one that has implications for any law on the books. It is the most recent and one of the most outrageous examples of "activist judges" legislating from the bench. There is nothing in the state or federal constitutions that could even remotely justify such a conclusion and finding.

"In addition to the profound legal implications of this ruling, the court's action underscores once again the growing problem of determining who in this country should make these kinds of decisions. In our democratic system, it must be the people, acting through their elected representatives, and not unelected judges. Increasingly, it is judges who are imposing their personal views and policy goals by fiat.

"The more immediate problem, however, is what will be the impact of this decision on traditional marriage and the family in the United States. Justice Scalia warned in his dissent in Lawrence, that the court's ruling in that case left ‘on pretty shaky grounds state laws limiting marriage to opposite-sex couples.’ He was right--and the Massachusetts decision was a veritable earthquake.

"Traditional marriage in this country is under the most serious attack ever. I have no doubt that, unless something is done, the courts will impose same sex marriage on us in the not too distant future. The only certain way to prevent that - to "do something" - is by amending the United States Constitution to clearly define marriage in this country as the union of a man and a woman.

"One thing each of us can do to help in this fight is to sign the National Petition to Defend Marriage that Defend Marriage is launching today. Our petition states simply:

* Whereas, strong families have been the foundation of all successful societies throughout history; and

* Whereas, marriage between a man and a woman has always been essential to protect and promote strong families; and

* Whereas, expanding the definition of marriage to include same-sex partners would inevitably undermine the institution of marriage and thereby weaken the family;

* Now, therefore, as a citizen of the United States of America, I urge Congress to defend marriage by passing a constitutional amendment to limit marriage to the union of a man and a woman."

Professor Wilkins invited concerned citizens to the website, www.defendmarriage.org., and sign the petition electronically. This petition will be presented to Congress as part of a broader effort to get a constitutional amendment passed. I’ve signed it.

On the same website you can find three articles: "Legalizing Same Sex Marriage: A Modern Attack On The Future Of America" by Richard G. Wilkins; "The Stakes, Why We Need Marriage", by Maggie Gallagher, editor of MarriageDebate.com.; and "Beyond Gay Marriage, The Road To Polyamory" by Hoover Institution Fellow Stanley Kurtz. His article summarizes the larger goals of social scientists and radical legal scholars in attacking marriage.