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In opposition to same-sex marriage

Dwight Duncan is an associate professor of constitutional law at Southern New England School of Law in North Dartmouth, Mass. and a lawyer for the Massachusetts Family Institute. The opinions expressed here are his own and do not necessarily represent the views of the law school or institute.

(Editor's Note: Chris Funnell, the former director of communications at the Massachusetts Family Institute, wrote comments on the same-sex marriage issue for Boston.com from March 9-25, but had to stop due to other commitments. Her entries, which reflect her views and not necessarily those of the institute, can be found below Mr. Duncan's comments.)

Also read Amy Hunt's web log in support of gay marriage

Dwight Duncan -- 05/23/2004 20:21

As reported May 17 at www.zenit.org, Cardinal Ratzinger, the Pope's right-hand man, recently gave a talk on the future of Europe: "There is a strange lack of enthusiasm about the future," he contended. "Children, who are the future, are seen as a threat to the present; it is thought that they take something away from our lives."

This situation, he stressed, marked the "the decline of the Roman Empire."

This reminded me of what Christopher Dawson wrote back in the 1930s: "Conditions of life both in the Greek city state and in the Roman Empire favored the man without a family who could devote his whole energies to the duties and pleasures of public life. Late marriage and small families became the rule, and men satisfied their sexual instincts by homosexuality or by relations with slaves and prostitutes. This aversion to marriage and the deliberate restriction of the family by the practice of infanticide and abortion was undoubtedly the main cause of the decline of ancient Greece, as Polybius pointed out in the second century B.C. And the same factors were equally powerful in the society of the Empire, where the citizen class even in the provinces was extraordinarily sterile and was recruited not by natural increase, but by the constant introduction of alien elements, above all from the servile class. Thus the ancient world lost its roots alike in the family and in the land and became prematurely withered." (Dynamics of World History, p. 161.)

The cardinal recalled how Europe -- both East and West -- previously agreed, in the light of biblical faith, on the idea of marriage as being between a man and a woman.

"The Charter of Fundamental Rights [of the European Union] speaks of the right to marriage, but it does not make reference to a specific juridical and moral protection and does not even define it in a more precise way," the cardinal continued.

"And we all know how marriage and the family are threatened, on one hand, because of the emptying of its indissolubility through ever-more easy forms of divorce; on the other, because of a new behavior that is spreading increasingly: a man and woman living together without the juridical form of marriage," he said.

Regarding proposals for the recognition of marriage between homosexuals, Cardinal Ratzinger said: "With this tendency we go outside of the whole moral history of humanity."

"It is not a question of discrimination, but rather a question of what is a human person insofar as man and woman," he said. "We are facing a dissolution of the image of the human being, whose consequences can be extremely grave."

We are now able to start observing these consequences here in Massachusetts. We can take heart in considering that, no matter what legal fictions courts might fashion to claim that male friendships or female friendships qualify as "marriage," marriage as a natural institution, which inherently allows a man and a woman to beget and to provide children with both a mother and a father, will always be with us. In making it possible for unmarriageable couples to "marry," though, we have just made real marriage and the resulting natural family more difficult.

Dwight Duncan -- 05/21/2004 11:03

Governor Romney has now asked Attorney General Reilly to enforce the law which voids marriages entered into in Massachusetts by non-residents for purposes of evading their own state's marriage law. Reilly's response? As reported on the front page of today's Globe, "Reilly refused to say whether he would agree to the governor's request. Reilly, a likely Democratic opponent to Romney in 2006, said, ‘We have an awful lot of other things going on, so we'll deal with this as it comes.'"

Evidently, Reilly is too busy running for governor to enforce the law. Reilly seems to be someone who gives lip service to law but is forever short on bite.

Since this blog is due to be discontinued after a final wrap-up posting this weekend, I'd like to insert a commercial. (Don't worry. It's bipartisan.) My law school, Southern New England School of Law, is sponsoring (along with the J. Reuben Clark Law School of Brigham Young University) a conference three weeks from today, Friday, June 11, on the Goodridge same-sex marriage case. The line-up of speakers, in addition to yours truly, includes Mary Bonauto, Gay and Lesbian Advocates & Defenders; Renee Landers, Suffolk Law School; Scott Fitzgibbon, Boston College; William Duncan, Brigham Young; Lawrence Friedman, Harvard Univ.; David Wagner, Regent Univ.; Deborah Forman, Whittier College; Joanne Grossman, Hofstra Univ.; Monte Stewart, Oxford Fellow; Lynn Wardle, Brigham Young. The conference is free and open to the public and will be held in the law school's Moot Court Room in North Dartmouth. For directions, see http://www.snesl.edu/Directions/Directions.htm. For additional information, you can contact me at dduncan@snesl.edu.

Dwight Duncan -- 05/20/2004 14:45

Our state senate, fresh from the March 29 constitutional convention that passed favorably on an amendment that would deny same-sex marriage come 2006, has now passed by a vote of 28-3 a budget amendment that would repeal the 1913 law that makes gay marriage solely a Massachusetts phenomenon for the time being. Am I the only one that senses some slight inconsistency? Why would we want to export to the rest of the United States something that we say we don't believe in? But our local politicians are not generally known either for consistency of conviction or for courage.

The reality is, however, that the battle has now shifted from Massachusetts to the rest of the nation. Already gay pairs are getting ready to challenge state and federal Defense of Marriage Acts around the country. GLAD is preparing a legal challenge to the 1913 law, in case they don't get what they want through the democratic process. Briefs are due June 7 in the New Jersey same-sex marriage case. That jurisdiction has a supreme court even more liberal than our own, so we should not be surprised if New Jersey follows Massachusetts in embracing a "least common denominator" conception of marriage.

At some point, it would be good if "we the people" got a chance to weigh in on the subject. The proposed Federal Marriage Amendment offers that chance.

Dwight Duncan -- 05/19/2004 10:27

The big news today is the Governor's request to review the marriage applications from the cities, Worcester, Provincetown, Somerville and Northampton. The reason? They are reportedly processing marriage licenses for out-of-state residents in contravention of the decades-old statute that says a marriage that would be void for out-of-staters if entered into in the state they reside is void if entered into here. Since no other jurisdiction in the United States recognizes gay marriage, then gay marriages involving anyone who does not intend to reside in Massachusetts are void here.

The Governor is seeking to enforce the law. Arline Isaacson, with typical understatement, calls this a "witch hunt." But why is that the rule of law only applies when it favors whatever assertions self-identified sexual minorities make?

Apparently, AG Reilly thinks that the restriction does not apply to the ten other states that do not have Defense of Marriage Acts, states like New York, New Jersey, Maryland, Connecticut and Rhode Island (New Hampshire just became the 39th state to pass a state DOMA.). I think that is wrong, since in none of those states can a person validly enter into a gay marriage. The Governor has it right.

Dwight Duncan -- 05/18/2004 10:53

It's the morning after, and I'll be the first to admit that the sky didn't fall, nor the rivers turn to blood, nor have we seen a plague of locusts (though cicadas are out in force in Washington, D.C. at this moment, on schedule after 17 years). I actually wish well for all those gay couples who are or will be "married" (or, as Chief Justice Maggie Marshall would say, "mawwied").

No, the sky didn't fall. It never does. Slavery didn't cause the sky to fall. Segregation didn't cause the sky to fall. The reduction of "marriage" to its lowest common denominator, a "type of friendship recognized by the police" (Robert Louis Stevenson), in a society which already trivializes and demeans marriage through easy divorce and contraception, not to mention out-of-wedlock births and parenting, hasn't caused the sky to fall.

Howard Kurtz, the Washington Post's media critic, has an interesting analysis of the press coverage at http://www.washingtonpost.com/wp-dyn/nation/columns/kurtzhoward/:

"[T]he overall vibe of most of the headlines and leads is that this is a step forward. Which, in the view of many liberal-leaning people and journalists, it is, comparable to the Brown v. Board of Ed ruling whose 50th anniversary was celebrated yesterday. But what is overshadowed, and what fuels the perception that the press is out of touch, is that many people consider this a negative step that violates the traditional concept that marriage is between a man and a woman.

"After all, John Kerry doesn't support gay marriage, and neither do most Democratic officials (though many back Vermont-style civil unions). George Bush is so opposed to gay marriage that he endorsed a constitutional amendment to ban the practice (though he has barely mentioned it and seems content not to flog the issue). And Massachusetts Gov. Mitt Romney, not wanting his state to become a gay mecca, is trying to bar licenses for couples from states where such marriages would not be recognized.

"In short, this remains a very divisive issue."

Mr. Kurtz quotes The Note, http://abcnews.go.com/sections/politics/TheNote/TheNote.html:

"It is almost certainly true that the national political press corps which covers this issue is more accepting of gay marriage than the nation as a whole; it is certainly true that the national political press corps does not fully appreciate the religious, moral, and psychosexual reasons why this is such an emotional matter for opponents of gay marriage."

One interesting sidelight on all this is the political fallout for the fall elections. There is sure to be a shakedown in our state legislature, as happened in Vermont after their legislature voted in civil unions. But it could well be that this issue is what re-elects Bush, particularly given the polling in swing states like Missouri, Pennsylvania, and Ohio. At this juncture Iraq and the economy do not seem to be plus factors for Bush, but his opposition to gay marriage is.

Dwight Duncan -- 05/17/2004 11:12

According to today's Boston Herald, here is what the very first recipient of a Provincetown MA same-sex marriage license has to say about marriage:

"[Jonathan Yarbrough] says the concept of forever is 'overrated' and that he, as a bisexual, and [his partner Cody] Rogahn, who is gay, have chosen to enjoy an open marriage. `I think it's possible to love more than one person and have more than one partner, not in the polygamist sense,' he said. `In our case, it is, we have, an open marriage.'"

Does this qualify as a "red herring" (as gay-marriage advocates would call it) or a "slippery slope" (as the opponents of gay marriage have been saying all along)?

Dwight Duncan -- 05/17/2004 08:56

Well, today is D-Day for gay marriage, which seems to be stealing the thunder from the day's 50th anniversary of Brown v. Board of Education. A moment of silence is in order, to consider the effects likely to ensue. A moment of prayer, too. A friend of mine, Fr. Roger Landry, a priest at St. Francis Xavier parish in Hyannis, had this to say in his homily yesterday:

"This weekend, a priest in Massachusetts really cannot avoid making a concrete application to the subject of gay marriage that will begin in our commonwealth on Monday. Jesus didn't explicitly talk to us about same-sex unions-it would have seemed as crazy to those of Jesus' age as it did to all of us until just a few years ago-but the Holy Spirit has led the Church to the clear truth about the matter, by reminding us of what Jesus said about marriage as a one-flesh, indissoluble union of a man and a woman joined by God (Mt 19:3-9), by inspiring the writers of the New Testament to speak out clearly about the sin of homosexual activity (cf. 1Cor 6:9, 1Tim 1:10), and by guiding the Church to a clear condemnation of gay unions.

"The Holy Spirit has led the Church to see very clearly that ‘gay marriage' is harmful and sinful because it is a stabilization of a lifestyle that is against God's revelation, one that breaks God's commandments of love. Insofar as it goes against the way God made us, it will never lead us to true peace and true love in this world. Our gay brothers and sisters who are contemplating marriage are seeking love, but they will never find genuine, lasting, life-giving love apart from God. Even more importantly, such activity will endanger their eternal salvation. We would be cowards and wouldn't really love our gay brothers and sisters if we didn't say this.

"To condemn ‘gay marriage' and same-sex activity is not the same thing as condemning those with same-sex attractions; we are called to love them and be compassionate to them and-it goes without saying-never wish them or do them violence. But we cannot love them more than God does, and one of the most important ways we can love them is by passing on the truth He reveals about the human person, about marriage, and about what God wants from us. Our gay brothers and sisters will never find genuine peace unless they live by God's commands. Neither will our society as a whole find genuine peace unless we start to order it according to the way God made us. Each of the faithful followers of Christ has a lot of work to do to love our gay brothers and sisters out of this lifestyle. God is counting on our efforts in this uphill battle. The Holy Spirit will help us."

Amen.

Dwight Duncan -- 05/14/2004 07:59

Here's my friend Jonathan Goulding's commentary on our strange constitutional crisis provoked by the judicial imposition of gay marriage. Jonathan is a second-year law student at Ave Maria School of Law in Ann Arbor, Michigan and a long time Massachusetts resident.

"The train is moving. It will soon be unstoppable as officials create and then begin administering the mechanics of same-sex marriage for the state of Massachusetts. Standard marriage forms are even now being revised. Town clerks are preparing for their new duties. Perhaps the most persuasive indicator that same-sex marriage will arrive in some form in Massachusetts on May 17 is that Governor Romney's legal counsel has instructed magistrate judges to resign if they cannot, in good conscience, marry same-sex couples.

"Yet on that date, if the rule of law is ultimately followed, same-sex marriage will no more exist in the state of Massachusetts than when its constitution was ratified over two hundred years ago. It is my position that the Massachusetts Supreme Judicial Court made legislative action a prerequisite for same-sex marriage. My authority is the Court's opinion itself, Goodridge v. Department of Public Health.

"For those who have not had the time or the inclination to read the historic opinion, the Court made the following two important findings. First, the Court found that current Massachusetts law does not provide for same-sex marriage. Second, the Court held that this state of affairs violates the Massachusetts constitution. Based on these two conclusions, the Court expressly directed the legislature to take appropriate action and to do it within 180 days.

"Regarding the fast approaching deadline, the legislators have done nothing except to request an advisory opinion of the Justices, inquiring as to the validity of "Vermont style" civil unions. The legislature received a sharply worded answer in the negative. And so, come May 17, all the citizens of Massachusetts will have is the Goodridge opinion.

"It is fundamental that the power of any state official to do anything comes from-and only from-delegated authority. In particular, the authority of town clerks to issue and file marriage licenses and of the Department of Health to create procedures relative to marriage flows directly from the Massachusetts statutes cited in Goodridge. Therefore, when the Court found that those statutes did not permit same-sex marriages, the Court effectively denied town clerks and Department of Health officials the ability to confer marriage upon same-sex unions until the legislature takes further action.

"Principles of our democratic republic demand that law be created by duly elected representatives. Those in the executive branch or in subordinate agencies-for example, town clerks-are not permitted to create law on an ad hoc basis. When, as has happened in Massachusetts, a state's highest court allows time for a legislature to change current statutes, procrastination on the part of the legislature does not empower those responsible for implementing existing law to proceed as if the statutes had been duly changed. Simply put, state officials may not implement a legislative scheme that does not yet exist. Yet, if the train keeps moving, that is exactly what will happen in Massachusetts on May 17. Town clerks, magistrate judges, and the entire executive branch are all gearing up for same-sex marriage. If the people of Massachusetts value their democratic principles, they will consider again the significance of May 17. Aside from an entry of the Court's judgment declaring that the lack of provision in the law for same-sex marriage is unconstitutional, nothing more will result. There will be no provision for valid same-sex marriages.

"Importantly, the Goodridge Court could have written its opinion so that legislative action was not a prerequisite for same-sex marriage. The Court could have construed Massachusetts law as currently written to provide for same-sex marriage. Alternatively, the Court could have created a form of common law marriage that included same-sex unions. Either would have had the immediate effect of creating same-same marriage in Massachusetts. For obvious reasons, however, the Court chose to do neither. Radical changes to law should involve, to the greatest degree possible, the cooperation of all of the co-equal branches. Without delving into the Court's claim that the world's oldest functioning constitution suddenly now requires same-sex marriage, it is to the Court's credit that it crafted an opinion mandating legislative action prior to same-sex marriage arriving in Massachusetts.

"It is unfortunate that Governor Romney and others are undermining the democratic process by refusing to recognize this. The result is that Massachusetts may shortly have hundreds or even thousands of "married" couples of dubious status. If, in due course, the rule of law is honored, these marriages will be invalid for lack of enabling legislation.

"There are undoubtedly those who would support the current trend. That the failure of the legislature to act in a timely fashion should give state officials carte blanche to effectively create law based upon the principles articulated in Goodridge is itself a dangerous principle to espouse. In essence, it will be legislation without the legislature. The founders did not contemplate such a thing when they framed our governments over two hundred years ago. Neither did the Goodridge Court six months ago. The people of Massachusetts would do well to keep this in mind."

Dwight Duncan -- 05/13/2004 10:21

The suit in federal court to block the implementation of the Goodridge decision was heard yesterday by U.S. District Court Judge Tauro, who promised to rule by this afternoon or tomorrow morning. The suit, on behalf of eleven legislators and the vice president of the Catholic Action League, is premised on the guarantee of a republic form of government contained in the U.S. Constitution. The argument is that, by usurping authority over the definition of marriage from the political branches to whom it is expressly entrusted by the Massachusetts Constitution, the Supreme Judicial Court is violating separation of powers. In effect, the SJC has given us a judicial government of (wo)man rather than a representative government of laws. If there were ever any case where the guarantee of a republican form of government is properly invoked, this is it.

The SJC's fig-leaf claim that Goodridge is not a "cause [meaning case] of marriage" after all, because it deals with a constitutional claim, is palpably ridiculous and without any rational basis or justification whatsoever. Why can't it be both a marriage case and a constitutional case at the same time, in which case the courts are denied jurisdiction by our Massachusetts Constitution? The only out for them would be if the judges could point to a specific provision of law granting them this jurisdiction. Tellingly, they cannot.

It should be interesting to see what Judge Tauro rules. Will there be any recourse from the tyrannical posture of the state judiciary?

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