The Impossibility of Homosexual Marriage

The supreme court has agreed to take up at least one case on the  legitimacy of “gay marriage”.

I divide my comments into two parts: [1] the full faith and credit issue and [2] the (in)validity of homosexual marriage.

Full Faith and Credit

In Andrews v. Andrews, (188 U.S. 14 (1903)) a husband left the couples’ domicile in Massachusetts moving to South Dakota to obtain a divorce that he could not have had in Massachusetts.

In reviewing the validity of the South Dakota divorce, and the husband’s subsequent remarriage in Massachusetts, the court held the remarriage void under a Massachusetts statute the which provided that a “divorce decreed in another state or country by a court having jurisdiction of the cause and both the parties shall be valid and effectual in the Commonwealth, but if an inhabitant of Massachusetts goes into another state or country to obtain a divorce for a cause which occurred in Massachusetts while the parties resided there, or for a cause which would not authorize a divorce by the laws of Massachusetts, a divorce so obtained shall have no force or effect . . . .”

The court reasoned that Massachusetts disallowance of the remarriage did not “conflict with the [contracts clause] Constitution of the United States”. Nor did the Massachusetts decree voiding the South Dakota divorce violate the full faith and credit clause. “[T]he courts of Massachusetts are not obliged to enforce a decree of divorce obtained in another state as to persons domiciled in Massachusetts and who go into such other state with the purpose of practicing a fraud upon the laws of the their domicil—that is, to procure a divorce without obtaining a bona fide domicil in such other state.”

The same reasoning ought to apply to state laws and judgments permitting gay marriage.

The broader principle of Andrews v. Andrews and of common sense is that one state’s laws or even judgments ought not be given automatic and extraterritorial effect in a second state where to do so would violate the second state’s own laws. That is the principle underlying the Defense of Marriage Act’s “SEC. 1738C. Certain acts, records, and proceedings and the effect thereof:

“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.”

And, lest the point be overlooked, the Andrews court rightly said, “The Constitution of the United States confers no power whatever upon the government of the United States to regulate marriage or its dissolution in the states.”

That ought to put an end to any thought of a federal action redefining marriage so as to permit homosexual marriage.

Homosexual “Marriage”

Beyond the full faith and credit issue is the broader issue–state laws permitting homosexual “marriage” are void as a violation of natural law which has its source in Divine Law. Long ago, Dr. Johnson defined marriage as “The act of uniting a man and woman for life.”

No one, not even our grand high archons on the U.S. Supreme Court, has the power to change the meaning of words.

Could Indiana have rightly redefined Pi? Could Minnesota rightly change the definition of “ex post facto”; or “man” to mean “beasts of the field”? Or could a legislature, like the villains in 1984 (or was it Brave New World?) say “war is peace”. Or change the definition of “theft” to exclude thefts from people making over $100,000 a year. The suggestion of mutability is uncommonly absurd and even dangerous.

As Aquinas wrote:

“[A] change in the natural law may be understood by way of subtraction, so that what previously was according to the natural law, ceases to be so. In this sense, the natural law is altogether unchangeable in its first principles: but in its secondary principles, which, as we have said (4), are certain detailed proximate conclusions drawn from the first principles, the natural law is not changed so that what it prescribes be not right in most cases.”

So natural law is unchangeable except in its secondary principles—that is principles that don’t depart from the core principle, but that are further expositions of the core principle. The core principle of marriage is man and woman. So gay “marriage”, is an illegitimate subtraction from that core principle.

Conclusions: The supreme court ought to dump the Proposition 8 case as presenting no legitimate federal question. The full faith and credit issue is resolved by the reasoning in Andrews v. Andrews and Section 1738(C) of DOMA cited above.

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Published in: on December 8, 2012 at 5:40 am  Leave a Comment  

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