Tuesday, October 31, 2006

New Jersey Decision: Lewis v. Harris

On October 25, 2006, the New Jersey Supreme Court released an opinion in which they require the New Jersey legislature to create a scheme for same sex couples to marry. The summary of the opinion identifies the main reason for the opinion: “Denying committed same sex couples the financial and social benefits and privileges given to their married heterosexual counterparts bears no substantial relationship to a legitimate government purpose.” The New Jersey court erroneously believes that marriage is basically a contractual device aimed at “financial and social benefits.” This is part of an erroneous view of marriage. Marriage is not merely a contract, it is a covenant relationship ordained by God for special purposes. The terms of marriage can be violated but marriage cannot be broken like a contract whose force disappears when one of the parties fails to abide by the terms of the contract. Otherwise marriages would last about fifteen minutes: until the bridegroom notices a bridesmaid’s cleavage or the bride refuses to obey a casual request of the groom.

The New Jersey case is also noteworthy because the side allegedly defending marriage sandbagged itself by failing to argue (at least the high court of New Jersey said they failed to argue) that marriage exists as an institution to “encourage procreation or to create the optimal living environment for children.” Other states have upheld traditional marriage precisely on that basis. The NJ court rejects it nevertheless. Radically political liberal courts cannot see marriage as a God-ordained institution or the law as bordered by a higher divine law, they cannot justify denying financial benefits to people who want them, even if the status upon which they base their desire for those benefits is rooted in something contrary to the natural law. What will be next? Protection for the sacred rights of safecrackers to carry out their profession unabated by the police? Rights of communalists to mixed group marriage? The right of women to eliminate bothersome ex-husbands by execution? Or the need to preserve the traditional right of used car salesmen to defraud their customers? What other immoral economic and social benefits can be justified by positive law?


Anonymous said...

Marriage can be said to be a pre-political institution that is foundational to our political order. Aristotle recognizes this in his "Politics."

At the same time, there is something very disturbing about a court ordering the state legislature to take action on the action of gay marriage. If I may paraphrase J. Scalia it is not the function of the courts to conduct a "kulturekampf" on a notion of marriage which is co-terminus with western civilization.

This is why the only solution to this issue is a constitutional amendment which defines marriage as a relationship between one man and one woman. The issue of polyamory as well as gay marriage must be addressed.

Secondly, the amendment must deny courts on both the federal level and the state level any jurisdiction over the specific question relating to the definition of marriage.

Third, the amendment must constitutionalize the Defense of Marriage Act which would eliminate any doubt about requiring State A from having to give "full faith and credit" to the definition of marriage in state B.

Finally, the Christian view of marriage found in Scripture must be taught from the pulpit. This is an issue which is critical to our culture. Although we must always reflect the love of Christ in our advocacy, we must also be prepared to give an answer to a culture which is increasingly vulnerable to the appealing but deadly notion of radical autonomy.

Benjamin Bush Jr. said...

Mr McConnell,
COuld you please expound on the virtuous legal differences between the "privilege" of marriage and the "right" of marriage?

Dean McConnell said...

Since God has commanded humans to be fruitful and multiply, but also commanded us not to commit adultery, There is a right to marry for heterosexual couples. Marriage is a right and not a mere privilege. But the right does not apply to people for whom it is morally wrong for them to marry. In our culture we have often come to look at rights as "law free zones." - but that is not a correct view. Real objective rights are predispositions of justice built into the divine order and evidenced by divine commands in scripture and by natural law. Even though there is a general right for heterosexual couples to marry, no one can have a right to marry their sister or mother or a person of the same sex because those marriages violate the divine order.

Lynn Green said...

All citizens must enjoy equal justice and equal rights or the ideal of justice means nothing. We cannot have a nation of second class citizens. Gay marriage doesn't do a thing to help or hurt my marriage or yours.

Dean McConnell said...

They all do. Everyone can marry single people of the opposite sex who are not close blood relatives. If you think restrictions on marriage between people who are attracted to each other is unequal treatment would you also support incestuous marriage, polyamoury, and child marriage? Probably not. The same moral limitations on marriage apply equally to everyone.

And, homosexual marriage hurts everyone by transforming the fundamental nature of marriage from government recognition of a divine institution to a government created contract.