U.S. Supreme court declared DOMA unconstitutional because defenders of heterosexual marriage never argued that gay marriage is unequal and unconstitutional. The Left screamed “equality” in every court in the nation. We never responded on the merits, were unable to state harm, and suffered an entirely preventable loss.
There is hope—but only if we immediately change our game. The animus propelling the recent decisions was “equality”, as evidenced by oral arguments and the terse language contained in decision of the Supreme Court. It is possible to reverse the rulings and protect state constitutional bans if we lead with strong equality arguments in our briefs and in our public work on the cultural front.
Time is of the essence. Suits challenging state constitutional same-sex marriage bans have already been filed in Pennsylvania, Ohio, Oklahoma, Texas, Kentucky, and two cases in Virginia (1) (2) . In Michigan, the federal court invoked the Full Faith and Credit Act, ordering the state to provide marital tax and other economic benefits to same-sex married couples from other states. We will quickly see challenges to state constitutional bans on gay marriage in all other states that ban same-sex marriage.
The Executive branch could also move to starve out states with constitutional bans by blocking federal funding on grounds that states are discriminating against their citizens. States’ attorneys will have no choice but to stand aside while their constitutional bans are quickly destroyed by state court challenges.
If we consistently apply the equitable principles outlined in this article, we can defend state constitutional bans and send the issues back to the Supreme Court for consideration on equitable matters. The Center for Marriage Policy is currently drafting a preliminary brief with the assistance of a ranking constitutional scholar.
Why heterosexual marriage is exclusively constitutional
Heterosexual marriage is the only constitutional form of marriage because it is the only possible arrangement that automatically confers equal social, economic, and parental rights to all married men and women regardless of one’s ability to naturally bear a child. Same-sex marriage immediately bifurcates these rights, destroying equality between men and women.
Sexual orientation is not relevant in same-sex (or so-called “gay” marriage) litigation or the cultural debate. The laws of a few states, the federal government, and the recent Supreme Court are irrationally flawed because they create the right for any two unrelated, unmarried human beings to marry each other regardless of sexual orientation. Where the discriminatory action of same-sex marriage will be imposed on all adults regardless of sexual orientation, sexual orientation is at most a secondary element an invalid cornerstone for the recent Supreme Court rulings.
In its ruling the Supreme Court unjustly and erroneously created three classes of marriage with vastly different reproductive, social, political, economic rights, and liabilities—depending solely on an individual’s ability to naturally bear a child.
Class 1: Mother-mother marriages: The class of marriages having most advantageous rights is marriages between two women. When two women marry, it is a three-way contract among two women and the government. Most women will bear children by men outside the marriage—often by pretending they are using birth control when they are not. Entrapped men become economically-conscripted third parties to these marriages, but get nothing in return.
This is a significant advantage compelling women who would otherwise become (or are) single mothers to choose to marry a woman instead of a man. They can combine incomes, double-up on tax-free child support and welfare benefits, decrease costs, and double the human resources available to raise children and run their household. They are sexually liberated with boyfriends often cohabiting with them to provide additional undeclared income and human resources without worrying about what happens when they break up with their boyfriends.
Today, approximately 25% of single mothers cohabit with an undocumented boyfriend. Same-sex marriage allows women to double-up on everything, establishing sub-rosa polyandrous marriage as a common legal institution with men as peripheral servants without a stake in marriage or society.
The welfare state is an automatic statutory third party economically supporting these marriage contracts via welfare entitlements, some of which are “advances on child support collections.”
The Supreme Court cannot explain away the unconstitutionality of same-sex marriage when the welfare state becomes a predatory, automatic, and unnatural statutory third-party-provider to a class of often structurally-polyandrous marriages, extracting substantial income from taxpayers and entrapped men, that other marriages do not qualify for.
Class 2: Heterosexual marriages. The second class of marriages is traditional marriages between men and women. Children of these marriages are almost always borne of the marriage and supported by husband and wife without governmental involvement. In these marriages, men and women have natural parental and economic rights, standing in society, and equal “gender power” before the law. Traditional marriages will be economically-disadvantaged compared to mother-mother marriages because they cannot draw large incomes from the welfare state and they will be taxed to support other marriages. They are treated in discriminatory fashion having to subsidize Class-1 and perhaps Class-3 entitlements (including ObamaCare) in their taxes.
Class 3: Male-Male marriages. Marriages between two men are destined to be the marital underclass. In most cases, these men will become un-consenting “fathers” by reproductive entrapment. Men in male-male marriages who become fathers by deceptive means will be forced to pay child support to women in bi-maternal marriages, and become economically enslaved to Class-1 marriages. The taxpayers will be guarantors of child support collections for low-income fathers who cannot afford to pay (as occurs in the existing welfare state).
Same-sex marriage is a multi-dimensional violation of 14th Amendment protections against sex discrimination. The 5th Amendment protection for life, liberty, and property without due process of law is structurally violated in cases of reproductive deception by women, regardless of marital status of the men involved.
The Constitution cannot accept three-party marriage with government providing special entitlements to only one class of marriage at the expense of the other two. Secondly, the Constitution cannot accept any marital arrangement that establishes three classes of marriage, where the classes are crisply defined and either rewarded or discriminated against based on one’s physical ability to bear a child.
Harm: The harm of same-sex marriage is substantial. All the problems of marriage-absence will be imported into the institution of bi-maternal marriage. Children raised in father-absence have between 400% and 1800% higher rates of problems such as illegitimacy, suicide, ADHD, incarceration and are far less likely to finish high school or succeed in the work force. When men are structurally excluded from marriage, the problem of violent de-socialized males will compound over time.
When the welfare state was launched in 1963, the illegitimacy rate was 6% and the divorce rate was 1.4 per 1000. Today, the illegitimacy rate is 41% and the divorce rate is approximately 2.5 per 1000. We have incontrovertible proof that the economic entitlement of non-marriage has caused profound longitudinal damage to heterosexual marriage. There is no basis in Constitution or conscience for doubly-entitling illegitimacy within the institution of bi-maternal marriage.
Medical science has documented the fact that homosexual behavior is a great health and social risk to everyone. There is no evidence that gay marriage reduces the extremely high rates of promiscuity commonly practiced by homosexuals and bisexuals. The Supreme Court ruling guarantees that schools will be aggressively promoting lifestyles that kill or disable children and infect innocent women and babies with HIV.
A brief analysis of equal rights issues
The only form of marriage that can be held constitutional is heterosexual marriage. Dr. Stephen Baskerville points out the fundamental structural equal-rights function of marriage: “Marriage exists to attach the father to the family. It is not a gender-neutral institution …. homosexual parenting marginalizes children still further from their fathers (and sometimes mothers).”
But this article misses the primary point: Marriage is not the “gender neutral” institution that progressives would make it. Laws sought by progressives are not only orientation-blind,; they are expansively sex-blind. The state must marry any two unmarried, unrelated adults who wish to marry for any reason whether it be social, economic, heterosexual, LBGTQ, or most importantly, sexual power.
Progressive terminology morphed from “gay marriage” to “same-sex marriage” over the past five years because the feminist power-agenda is not attached to orientation. The feminist goal has always been to create an institution where any two women can marry each other, have children out of wedlock, and force individuals who cannot be part of the marriage to support it economically, with government as a statutory guarantor.
Marriage is a sex-neutral institution that brings two very different sexes into the “contract”, producing a sex-neutral outcome in every marriage assuring that children will be supported and reared in a diverse parenting environment without any governmental involvement. By affirming both sexes, heterosexual marriage naturally establishes protected equal social, economic, reproductive, parental, tax, and political rights between one man and one woman (in microcosm), and for all Americans (in macrocosm).
Impressing “gender neutrality” on marriage reverses the result. Two already-equal (same) sexes enter a marriage but end up with statutory rights (or liabilities) arbitrarily apportioned solely on the physical ability of those two persons to naturally bear a child.
The welfare-state-as-marriage: Bi-maternal marriages are economically far superior because they will predominantly bear children outside the marriage, drawing multiple sources of tax-free income not available to the other classes of marriage. Where child support and welfare are the right of the child, but those benefits are awarded to the adult custodian(s), the adult is economically propelled to choose the most advantageous marital arrangement at the expense of the child’s right to have a father and a mother.
Bi-maternal marriage will legally amalgamate the entire welfare state apparatus and the problems of illegitimacy into the institution of marriage. Marriage-absence generates a the greatest social, economic, poverty, and tax problems we face. Marriage-absence is also a tremendous, unproductive, and unnecessary load on federal and state social services budgets.
Illegitimacy and non-marriage are informal activities not warranting the constitutional protections and affirmations of marriage. Same-sex marriage is not a substitute for, or equivalent to heterosexual marriage because of the documented costs it will impose on the nation, businesses, and the taxpayers. It would be unconstitutional to broadly empower the welfare state to affirmatively “buy out” the institution of heterosexual marriage in the name of “gay equality.”
If same-sex marriage is forced on America, it is an irreversible change at law. Daniel Patrick Moynihan warned us that illegitimacy would grow quickly and have profound adverse impact on marriage, budgets, crime, and the Nation. My prediction of harm is nothing more than a straight-line extension of Moynihan’s prescient analysis, proven to be fully correct by fifty years of history. If legalized, economic advantage will still drive women’s marital decisions, but many will choose to marry another woman (and the welfare state) instead of becoming a struggling single mother. Advantage alone will drive a much more aggressive and insidious welfare state that cannot be reigned in because same-sex marriage is a constitutionally-protected activity that by way of precedent cannot be withdrawn at a later date. This is far more dangerous than ObamaCare, abortion, capital punishment, or excessive gun regulations—which are reversible by legislatures and the courts.
Equal rights of the sexes: In bi-maternal marriages men have no automatic parental or custodial rights under federal or state law. They must unnaturally sue for them at great expense. A variety of state laws established by the Personal Responsibility and Work Act of 1996, such as “Paternity Registries”, are systematic procedural barriers to custodial and parental rights for men.
Men will be forced to labor for the economic benefit of marriages between women—marriages men have been “redlined” out of—by the choice of two women who married with intention to have children by men outside the marriage. This approaches the definition of slavery—and perhaps sexual trafficking or bondage. This is one reason that the welfare state has been called a “plantation” by an increasingly large cohort of politicians and activists.
Racial equality: Comparisons to racial equality laws strongly favor the proponents of heterosexual marriage. Whites cannot “choose” to deny blacks the ability to move into a neighborhood, to enter a restaurant, or to attend a school. Marriage is similarly a “public institution” licensed and regulated by government. Same-sex marriage will permit women to “choose” to advantageously wall men out of government-entitled marriages. Men’s natural social, economic, parental, and political rights will be procedurally subrogated. Many men will become rump-class servants to the bi-maternal welfare state.
Progressives hope to establish an irreversible system of choice-based sex discrimination against men operating similarly to pre-civil-rights racism, when discrimination against blacks was commonplace with respect to property, political, and voting rights. Individuals cannot “choose” to red-line blacks out of the housing market. Individuals cannot “choose” an arrangement impressing blacks to support them with nothing in return. This is precisely what gay marriage will do to all men of all races.
Severability of economic rights and lack of class-action status: Many same-sex cases beyond United States v. Windsor involve unmarried same-sex cohabitants living in economic “civil unions.” Windsor and these other non-class-action cases were carefully selected and framed to keep children and parental rights excised to ensure that welfare state and parental rights considerations could not poison the litigation. The recent decision in Windsor is a broadside evisceration of the economic function of the institution of marriage, and a propellant encouraging women to dump their husbands in favor of same-sex marriages. The lack of class-action scrutiny combined with the absence of review of child/parental rights and welfare-state impacts suggests these cases are too myopic and incomplete to warrant a Supreme Court finding justifying either review, much less broad application economically destroying heterosexual marriage in Supra.
The rights of citizens to act: It is well-established that citizens have standing to act when government fails to exercise its statutory duties. Citizens can form street patrols in high-crime neighborhoods. For example, Steven Seagal organized border patrols. Where the California state’s attorney refused to defend Proposition 8 pursuant to his sworn duty, the proponents of Proposition 8 have citizen’s right to defend it in state courts. This right is not procedurally severable merely because an Appeal rose from a state court to a federal court. The Supreme Court ruling in Hollingsworth v. Perry is a broad usurpation of local rule, citizens’ rights, and a disembodied application of the Supremacy clause.
The fundamental purpose of heterosexual marriage: Heterosexual marriage harnesses two very different sexes to form one human race working cooperatively to naturally build nations, economy, and raise children. It guarantees equal social, economic, parental, and political rights to all citizens regardless of sex. The Constitution does not support any idea that bifurcates and redirects the natural rights of men and women depending solely on the natural ability of a person to bear a child. To dismantle marriage—the most important equal rights institution framed by the Founding Fathers—is to dismantle the Constitution, freedom, and the United States of America.
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David R. Usher is President of the Center for Marriage Policy.
