Charlie's Undecided. He Shouldn't Be.

In Sykes' column, he states that he's "undecided" about The Amendment. He doesn't really like the "second sentence," and cites Althouse. We'll deal with that later.

His principal objection to The Amendment seems to be based on 'Conservative principle,' in this case, "Conservatives also believe that, as a rule, constitutions should limit the powers of government, not of individuals. "

But what Constitutions actually limit is not the "power of government" but "the power of Government to change (or abrogate, or derogate from) natural law". This is a big difference, and goes to the debate over the limits of "positive law."

In other words, while the (US) Constitution restricts the Feds from establishing a State religion, what it actually is doing is allowing "freedom" of religion--a principle of natural law. In a similar fashion, the US Constitution affirms the right to property by restricting "takings" of said property. The US Constitution also broadly affirms the rights of the several States to govern their own affairs--another feature of natural law usually called "subsidiarity." It is the affirmation of Natural Law that Conservatives support.

So perhaps the better way to phrase the "Conservative" belief is that Constitutions reinforce natural law by restricting positive law. Properly understood, Constitutions prevent positive laws from creating "legal fictions," at least at the most fundamental level.

The real intention of the first sentence of The Amendment comports precisely with this line of reasoning; it seeks to prevent Government from derogating from the natural law of marriage, which is a covenantal relationship between a man and a woman, usually producing offspring, which is in the interests of the State.

In his obiter dicta, Sykes mentions "stable relationships," arguing as though "stability" is a result of positive laws governing marriage. It is not. Similarly, a "loving relationship" is not a result of positive laws governing marriage. The phrase "[one] cannot legislate morality" exists precisely because of this. Only the Natural Law militates for "positives" such as charity, kindness, and forgiveness. (By the way, it is by no means an established case that homosexual 'marriages' are more stable than heterosexual marriage; quibbling over "quality of marriage" is not substantive and misses the point.)

Then Sykes makes a very curious assertion: "But there is another, somewhat more sutble, choice as well: marriage will be redefined either through evolutionary or revolutionary means. Society will either gradually change its attitiudes in response to the sorts of relationships that develop in its midst, or the change will be rammed down its throat by court order or government dictat."

Huh? Frankly, the only "redefinition" of marriage is the fiction imposed by the Massachusetts Supreme Court. While there is a vocal minority of people who are agitiating for "redefinition" of marriage, marriage is simply not "defined" by "society," strictly speaking; it is defined by natural law. We know it's 'natural law' because marriage between man and woman is "marriage" all over the Earth, regardless of "faith" tradition. Maybe I don't understand Charlie's point here--but what he's saying is akin to saying that 'there will be a redefinition of the Law of Gravity.' Not likely.

What Sykes apparently refers to is society's toleration of homosexual relationships, which is far different than a "definition of marriage." The decision to tolerate these (and a number of other non-marital uses of sexual relations) is not in any way, shape, or form a "licensing" nor "approval" of such arrangements. This decision is analogous to the decision made by the cops to "tolerate" exceeding the speed limit. They haven't changed the definition of speeding, Charlie...

Let's get on to the Second Sentence.

Pace Althouse, the Second Sentence prevents Wisconsin from being ruled by (e.g.) the Massachusetts Supreme Court under the "full faith and credit" clause of the US Constitution.

In addition, the Second Sentence restricts the State from derogation of the law of subsidiarity. Althouse makes the point that this sentence could lead to changes in benefits "enjoyed by real families here in the State." The response is "so what?"

The State could remove from its books all laws which 'privilege' marriage. That's not likely--but it is possible. More important, however, is that the Second Sentence ALSO prevents the State from imposing 'privilege' requirements onto third parties--that is, it recognizes the law of subsidiarity. Under this provision of the Amendment, the State will have no constitutionally-approved ability to force municipalities (e.g.) to provide health-benefits for unmarried couples of ANY persuasion. At the same time, the State will not have the ability to prevent such an arrangement, if it is made voluntarily.

Finally, Sykes calls for a civil discussion of The Amendment. The mutual respect which Sykes calls for rests on natural law mandates--not on positive law mandates. So before anyone decides to take potshots at Natural Law--remember what's protecting you.