Institute of Marriage
Research & Studies
Calling Something a Marriage Does Not Make It a Marriage
- Erasing Notion of Childbearing
- Marriage Left Undefined
- Redefining Marriage v. Constitution
- The Door Same-Sex Marriage Opened
- Legal Right to Oppose Same Sex Marriage
- Secular Opposition to Same-Sex Marriage
- What Does Separation Church & State Mean
Marriage throughout the history of the United States has always been a covenant between a man and a woman. The idea of same-sex marriage is relatively new.
Supporters of same-sex marriage are faced with the notion that the main non-religious purpose of marriage is to legally recognize two people’s commitment to one another and afford those rights that come with marriage, and more importantly the idea of conceiving and raising children (which parallels with the religious purpose).
Since same-sex couples cannot conceive children that notion must be erased. Thus, supporters of same-sex marriage must first disentangle and then remove from marriage the notion of childbearing; and turn marriage into a principle that government must recognize the unity of
two people defined by any means as loving one another.
But the world is more diverse than just straight people and homosexuals; there are polygamists and incestuous relations. Under the same principle allowing same-sex marriage it would be hypocritical, if not also unlawful, to not allow them the same marriage.
It is also argued that while not all husbands and wives choose to have children, or is capable of doing so, this does not alter by one iota society’s compelling interest in holding out as normative, and particularly desirable, that it is the only type of sexual relationship that is capable of doing what is required for the perpetuation of society.
In that case history has it right. Let same-sex couples in the Untied States have their civil union with all the same legal rights afforded to a marriage; but leave "marriage" what it is, a covenant between a man and a woman.
Marriage Left Undefined
Presently, there is not a legal definition for "marriage" in the sense there is not a federal statute or court ruling that, beyond for purposes for financial or similar benefits, defines what a marriage is. That is a separate thought from recognizing a legal marriage, which many argue calling something a marriage does not make it a marriage.
Generally speaking, legislatures make laws and the court define those laws. Often the legislature will incorporate into statute the definition of a word. Otherwise, the court is left to its own interpretation of what a word means.
Whenever the court is left to its own interpretation, it is suppose to give a given word its ordinary, customary, or plain meaning. In that endeavor dictionaries are commonly used by courts to determine how they should interpret a word.
In 1996, President Bill Clinton signed into law the Defense of Marriage Act (DOMA), which, for federal purposes, defined marriage as "only a legal union between one man and one woman as husband and wife" (1 U.S.C. § 7). DOMA further provided that "No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship" (28 U.S.C. § 1738C).
In 2013, the constitutionality of this federal definition of marriage was questioned before the U.S. Supreme Court. The civil rights case, United States v. Windsor, was filed three years earlier, Edie Windsor arguing that DOMA violated her Fifth Amendment equal protection rights.
Windsor claimed that "the Internal Revenue Service denied her a tax refund […] in estate taxes after the death of her wife, Thea Speyer, in 2009. Windsor and Speyer were partners for more than 40 years at the time of Speyer’s death. The couple married in Canada in 2007 and lived in New York. The IRS cited DOMA as its reason for denying Windsor’s estate tax refund, which would have otherwise gone directly to her if Speyer was a man."
In a 5-4 ruling (same divide vote as in Obergefell v. Hodges, legalizing same-sex marriages in all states) the Supreme Court struck down that part of the statute which prevented the federal government from recognizing any marriages between same-sex couples for the purpose of federal laws or programs, even if those couples are considered legally married by their home state.
The remaining part of DOMA that individual states were not legally required to recognize or acknowledge the relationships of same-sex couples who were married in another state, was left intact. Only the section that dealt with federal recognition was ruled unconstitutional.
It is argued that the Supreme Court in Obergefell v. Hodges did not so much define or redefine marriage, as it worked to undefined it altogether. This may sound confusing for some but a closer examination will help to explain that.
If the Supreme Court in United States v. Windsor and Obergefell v. Hodges had sought to define marriage and relied on dictionaries in that endeavor, it would have found Samuel Johnson (1755), the great English lexicographer, defined marriage as “the act of uniting a man and woman for life.” Noah Webster (1828), a lawyer by training, defined marriage as:
"The act of uniting a man and woman for life; wedlock; the legal union of a man and woman for life. Marriage is a contract both civil and religious, by which the parties engage to live together in mutual affection and fidelity, till death shall separate them. Marriage was instituted by God himself for the purpose of preventing the promiscuous intercourse of the sexes, for promoting domestic felicity, and for securing the maintenance and education of children."
The Supreme Court also would have found that the Century Dictionary (1891), the first to be based on scientific and linguistic principles, stressed the civil nature of marriage as “the legal union of a man with a woman for life.” Nothing shocking there, but it is also the first dictionary to recognize that marriage is defined differently in different cultures.
"When definitions are at stake, as in the marriage debates, the dictionary can become a political football. […] But are dictionaries really ‘our sources for what words mean’? That imparts a social power to lexicographers that they themselves would likely disavow: To them, dictionaries merely reflect common usage."
Still, recently dictionaries have modified their definitions of marriage as social attitudes toward marriage have changed. That is because dictionaries record how speakers and writers have used some words some of the time in some contexts. Another reason for modifying some of their definitions is the pressure from so-called political correctness.
Indeed, the Merriam-Webster and Oxford dictionaries, which are the two dictionaries courts more often refer to, have completely removed from their definition of marriage all reference to a man and a woman. Today the definition reads more like: "The legal union of a couple as spouses. The basic elements of a marriage are: (1) the parties' legal ability to marry each other, (2) mutual consent of the parties, and (3) a marriage contract as required by law,"
While courts may refer to these new definitions for the ordinary, customary, or plain meaning of a given word, they may just as easily ignore the definition offered by dictionaries; because, despite our reverence for dictionaries as the ultimate language authorities, lexicographers do not write dictionaries with the law in mind.
As stated above, the Supreme Court in Obergefell v. Hodges did not so much define or redefine marriage, as it worked to undefined it altogether—it did not for example define what marriage is. Rather, it held that the Fourteenth Amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State.
In other words, the Supreme Court in Obergefell v. Hodges ruled on the "right to marry for the purposes of government benefits but did not create a legal definition of marriage. That door remains open and can be addressed in any number of ways: an amendment to the U.S. Constitution that would reverse the court’s ruling, the U.S. Supreme overruling itself and other ways (see Status page, Reversing the SCOTUS Ruling and Steps to Abolishing Same-Sex Marriage).
But for now there is not a legal definition for “marriage” in the sense there is not a federal statute or court ruling that, beyond for purposes of financial or similar benefits, defines what a marriage is.
 United State v. Windsor, (No. 12-307) 570 U.S. ___ (2013).
 Stay Informed on the Changing Legal Definition of Marriage, Chicago Daily Law Bulletin, Volume 159, No. 80, April 24, 2013.
 Obergefell v. Hodges, (No. 14–556) 576 U.S. ___ (2015).
 Cf. "A contract made in due form of law, by which a free man and a free woman reciprocally engage to live with each other during their joint lives, in the union which ought to exist between husband and wife. By the terms freeman and freewoman in this definition are meant, not only that they are free and not slaves, but also that they are clear of all bars to a lawful marriage.” Marriage, The 'Lectric Law Library © 1995 – 2017 (http://www.lectlaw.com/def2/m087.htm); "Marriage, as distinguished from the agreement to marry and from the act of becoming married, Is the civil status of one man and one woman united in law for life, for the discharge to each other and the community of the duties legally incumbent on those whose association is founded on the distinction of sex," What is Marriage(?), The Law Dictionary: Featuring Black's Law Dictionary Free Online Legal Dictionary 2nd Ed (http://thelawdictionary.org/marriage/); and "Same-sex marriage is also known as gay marriage or a homosexual marriage. This kind of marriage is a ceremonial union of two people of the same sex; a marriage or marriage-like relationship between two women or two men," Same-Sex Marriage Law and Legal Definition, USLegal.com © Copyright 1997-2016 (https://definitions.uslegal.com/s/same-sex-marriage/).
 The Fight Over Defining Marriage, Literally: Can Change the World by Changing the Dictionary?" — Ben Zimmer, The Boston Globe, June 10, 2012 (https://www.bostonglobe.com/ideas/2012/06/09/the-fight-over-defining-marriage-literally/5G2G0tCt6VFd0VQ1Y3vrFN/story.html).
 Marriage, Legal Information Institute, Carnell University Law School (https://www.law.cornell.edu/wex/marriage).
 Obergefell v. Hodges, Id.
Redefining Marriage v.
Interpreting the Constitution
Writing for the court in Obergefell v. Hodges, Justice Kennedy said the Framers of the Constitution "did not presume to know the extent of freedom in all its dimensions, and so they entrusted future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning."
However, "in 1776 male homosexuals in the original 13 colonies were universally subject to the death penalty, and that in earlier times, for a brief period in one colony, lesbians had been liable to the same punishment for relations with other women." Louise Crompton, Homosexuals and the Death Penalty in Colonial America (1-1-76) University of Nebraska, Faculty Publications - Department of English, paper 60), page 279.
Homosexual acts were considered "infamous" offenses meriting "public horror." Id., at 285. Thomas Jefferson himself authored a bill to penalize sodomy by castration. Thomas Jefferson, Writings of Thomas Jefferson, Albert Ellery Bergh, editor (Washington D. C.: Thomas Jefferson Memorial Association, 1904), Vol. I, pp. 226-227, from Jefferson's For Proportioning Crimes and Punishments; Id., at 287.
Even later when the Fourteenth Amendment (equal protection, due process) was being ratified in 1868, all but five of the 39 states had criminal sodomy laws, with the remaining five
states eventually following the same course.
To be fair the Framers of the Constitution were well aware of and intentionally did not include "sodomy" under the protection of the United States Constitution or Bill of Rights.
In his dissenting opinion in Obergefell v. Hodges, Justice Scalia wrote "[W]e need not speculate. When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so."
Thus, it may be said that the court in Obergefell v. Hodges more so than interpreting the Constitution, instead unconstitutional redefined marriage.
The Door Same-Sex
When the clerk in Washington County posted a sign that read “Licenses for Polygamous and Incestuous Marriages Not Available, Go to the Supreme Court,” it generated some laughs. Then the questions all wondering whether same-sex marriage had opened the door to other marriages which, like same-sex, had previously been looked at as immoral and would never happen.
Supporters of same-sex marriage in response to those who say it opened the door to polygamy and incest marriages, brush it off as simply a slippery slope argument. But, has the door been opened?
Justice Roberts in his powerful dissenting opinion (to the Supreme Court’s 5-4 decision legalizing same-sex marriage every state) emphasized that there was no principle distinction between the Court’s majority arguments for same-sex marriage and arguments for allowing polygamy marriage.
Dr. Ben Carson similar stated: “If you change the definition of marriage for one group, what defense do you have for the next group that comes along and wants it changed?” Those are not slippery slope arguments.
In what could be one of the most honest comments by someone who supports same-sex marriage (in his case and incest between consenting adults), Peter Flom, Statistical Analysis and one-time author, wrote: “Anything consenting adults want to do in private should be allowed. I am also for legal polygamy, polyandry, drug use, gambling, group marriage….” Quora, January 22, 2015.
As for polygamous marriages, there are a number of cases before the courts arguing that it should be legalized. One such case made it to the Supreme Court, which earlier this year it would not hear. See, Brown v. Buhman, 822 F.3d 1151 (2016). But as they say, that was just a practice run.
Supporters of incestuous marriages are waiting until polygamous marriages have gain ground in the courts. See e.g., the website/blog Full Marriage Equality, http://marriage-equality.blogspot.com/2012/08/frequently-asked-question-can-siblings.html.
Of course, then there is the question why not legalize incestuous marriages? If an incest couple agrees not to have sex which could produce children, similar to same-sex couples, how is same-sex marriage any different from incestuous relationships or even marriage?
Most if not all of the arguments against legalizing incestuous marriages have been declared void. For example, it can no longer simply be stated that it is disgusting, because a lot of people find homosexuality disgusting. The Supreme Court (along with supports of same-sex marriage) has decided that people's rights should not be inhibited by the disgust of others.
It can no longer be argued that incestuous couples are more likely to have deformed children, because the Supreme Court (along with supports of same-sex marriage) has said marriage is not about reproduction.
Nor would it be fair and definitely not politically correct to argue a psychological affliction behind incestuous marriages, since homosexuality not that long ago was classified as a disorder before it became socially acceptable.
So, not being a slippery slope argument but a valid question, has same-sex marriage opened the door to polygamy and incest marriages?
Effectively the Legal Right to Oppose
On May 4, 2017, President Trump signed Executive Order 13798 to declare the policy of the United States government regarding religious liberty under the U.S. Constitution and federal law, the first such order in American history.
Section 4 of that executive order provides, "In order to guide all agencies in complying with relevant Federal law, the Attorney General shall, as appropriate, issue guidance interpreting religious liberty protections in Federal law."
On October 6, 2017, Attorney General Jeff Sessions acted on the Executive Order issuing guidance that declares 20 separate protections under federal law. They include:
1. The freedom of religion is a fundamental right of paramount importance, expressly protected by federal law.
2. The free exercise of religion includes the right to act or abstain from action in accordance with one’s religious beliefs.
3. The freedom of religion extends to persons and organizations.
4. Americans do not give up their freedom of religion by participating in the marketplace, partaking of the public square, or interacting with the government.
5. Government may not restrict acts or abstentions because of the beliefs they display.
6. Government may not target religious individuals or entities for special disabilities based on their religion.
7. Government may not target religious individuals or entities through discriminatory enforcement of neutral, generally applicable laws.
8. Government may not officially favor or disfavor particular religious groups.
9. Government may not interfere with the autonomy of a religious organization.
It addresses nearly all of the current religious liberty controversies and rules in favor of accommodating religious beliefs.
In practice, it means that the Christian baker could refuse to participate in a same-sex wedding, churches could advocate political positions from the pulpit, businesses could opt out of providing abortion and contraceptive insurance, religious organizations could limit their hiring to those who agree with the religion, and the government could not refuse contracts or benefits on the basis of religion.
The twenty principles include summaries of existing federal law, such as the Religious Freedom Restoration Act of 1993, as well as interpretations and applications that are to guide government agencies.
The attorney general’s memorandum (guidance) protections under the Religious Freedom Restoration Act (RFRA), include: (#14) how demanding its legal standard is in protecting religious liberty, (#12) that it does not allow the federal government "to second-guess the reasonableness of a religious belief," and (#13) RFRA is violated when the government “substantially pressures” a religious person or group "to modify such observance or practice."
It also clarifies religious protections under Title VII in federal law governing employers, regarding (#16) not discriminating against employees on the basis of religion, including (#17) religious observance and practice. Additionally, (#19) religious employers have the right to hire only individuals who agree with that religious faith, and (#20) the federal government may not require an organization to set aside any of its religious-liberty rights as a condition for getting any grant or benefit.
President Donald Trump in the Executive Order, Section 1, stated: "The Founders envisioned a Nation in which religious voices and views were integral to a vibrant public square, and in which religious people and institutions were free to practice their faith without fear of discrimination or retaliation by the Federal Government."
to Same-Sex Marriage
Supporters of same-sex marriage would have us think that all opposition to same-sex marriage is based entirely on religion.
However, as Adam Kolasinski in an article explained, he is an atheist and has no religious reasons for opposing same-sex marriage—but he has secular reasons. See online, The Secular Case Against Gay Marriage, The Tech, Vol. 124,
Issue 5, February 17, 2004.
He went on to identify a number of non-religious reasons for opposing same-sex marriage; one of which is same-sex couples are neither an adequate emotional balance nor proper role models for children. Id.
Also, we must consider the number of popular books opposing same-sex marriage written by secular writers.
For example: Why Gay Marriage is a Very Bad Idea and A Fight for Equality or War on Difference both by Brendan O’Neill; The Gay Marriage Addendum by Rocking Mr. E.; or Societal and Institutional
Impacts of Same-Sex Marriage in the U.S. and Abroad and Why Same-Sex Marriage is Like Opening Pandora's Box both by Andre Jenkins, an Agnostic; or Agreements Between Men by Jack Donovan, to name just a few.
Similarly, there are countless articles opposing same-sex marriage for non-religious reasons. One of them by Michael Bauman, A Non-Religious Case Against Same-Sex Marriage, The Imaginative Conservative, April 5, 2013.
None of these articles better written than the one by James Arlandson, titled Ten Non-Religious Reasons to Keep Marriage Traditional, American Thinker, January 13, 2013. In it he wrote from a non-religious standpoint:
"The monogamous, heterosexual union, consummated by the unique sex act between one man and one woman, is optimal for having and rearing children, thus ensuring that society can live another generation. The family thrives by the special relationship between the biological, opposite-sex parents and their
children. Consequently, society thrives."
"By recognizing this pre-legal, intelligible essence and its purpose, and by conferring a unique status on it, called marriage, a wise society teaches its members that it values this covenant more highly than all other arrangements. And so should society's individual members."
Thus, it is most unrealistic to think that all opposition to same-sex marriage is based entirely on religion; even though supporters of same-sex marriage may want you to think that.
What Does Separation of
Church and State Mean
The phrase "separation of church and state" so often relied on by those who say all opposition to same-sex marriage is based on religion (see this page, Secular Opposition to Same-Sex Marriage), is regarded by many as a fallacy. In fact, those words do not appear in the Constitution or any other founding legislation.
Because our founding fathers did not want Congress to establish a national church as England had done, they included under the First Amendment the words "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."
It was in Thomas Jefferson’s letter to the Baptist Association of Danbury, Connecticut in 1802, that the phrase separation of church and state originated. See, The Writings of Thomas Jefferson, Lipscomb and Albert Bergh (1853), Vol., 16, pp. 281-282.
He wrote: "I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law regarding an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between Church and State." Id.
At the time Jefferson was President of the United States and he was responding to the Danbury Baptists' complaints that Connecticut's law was oppressive to their religion (among other things, Connecticut's law allowed towns to levy taxes for the support of a religion designated by the majority of voters; since Connecticut was overwhelmingly Congregationalist, the law effectively forced Baptists throughout the state to support Congregational churches).
Even as President, Jefferson was powerless to change Connecticut's law (the First Amendment was not enforced on the states until enactment of the Fourteenth Amendment in 1868), he used the occasion to express his belief that no such law could be implemented on the federal level.
Yet, it cannot be argued but that the United States was founded on Christian values. After all, even George Washington declared in his 1796 Farewell Address, that of "all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports." The Declaration of Independence and Other Great Documents of American, John Grafton (2000), pp 47-48.
John Quincy Adams himself in a letter to an autograph collector in 1837, said, "The highest glory of the American Revolution was, it connected in one indissoluble bond, the principles of civil government with the principles of Christianity." (The letter was published in The Historical Magazine (July 1860), pp. 193-194; the quote actually slightly misquoted by John Wingate Thornton in the Pulpit of The American Revolution (1860). The actual words of Adams were: "The highest, the transcendent glory of the American Revolution was this—it connected, in one indissoluble bond, the principles of civil government with the precepts of Christianity.")
Even the U.S. Supreme Court in a case involving federal immigration officials attempts to block a Church from hiring a pastor from England, based on a federal statute which prohibited importing foreign laborers, held that this statute could not be applied to pastors because the United States is a Christian nation. Holy Trinity Church v. U.S., 143 U.S. 457 (1892).
Still, others argue that separation of church and state means just that and the two cannot mix. It is probably safe to say that the U.S. Supreme Court case which really started it all, is: Everson v. Board of Education, 330 U.S. 1 (1947).
In that case Justice Black wrote: "The 'establishment of religion' clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another […] No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion […] In the words of Jefferson, the clause against establishment of religion by law was intended to erect ‘a wall of separation between Church and State.'" Id., at 15-16.
Of course, there is the strong argument that Justice Black misrespresented the words of Thomas Jefferson.
In any event, if the separation of church and state phrase means exactly that, as some argue, then the question why is the state interferring with marriages—particularly the word "marry" which is a religious term (see Etymology page, Rediscoverying the Word: Marry)? The other question might be why is the state in the business of marriage (see Marriage page, Togetherness for Marriage and Unions)?
Or, what exactly is meant by separation of church and state?
The Constitution of all 50 states makes reference to God.
In all but four states there are a collective total 116 direct references to God. In CO, IA and WA, their Constitutions refer to a "Supreme Being" or "Supreme Ruler of the Universe." The Constitution of Hawaii refers to the "Divine."
In addition to direct their references to God, the state constitutions contain 81 other references to the almighty or similar terms: "Almighty" 46, "Supreme" or "Sovereign" 14, "Creator" 7, "Christian" 7, "Divine" 4, and "Providence" 3 times.
The Purpose of Marriage
THE PLAIN TRUTH
A Magazine Restoring Plain Understanding
“Legislators have introduced bills and statutes that would give pedophiles and other ‘alternative lifestyles’ legal standing. Our society is failing and the results are evident.”
“It found that 30% of adults in America did not even believe in morality. Take a moment to realize what this means. Almost one in three adults does not feel that morals shape the way he thinks and makes decisions.”
“Teaching tolerance will never be compatible with teaching right from wrong, because teaching right from wrong is considered intolerance!”
“In a perverse and immoral society, the concept of marriage becomes irrelevant.”
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