Earlier this year, the California Supreme Court held in In re Marriage Cases that same-sex marriage must be allowed in this state as a matter of the Equal Protection principle. In response, California pro-family advocates have placed Proposition 8 on the upcoming ballot for consideration. Proposition 8 will constitutionally ban same-sex marriage in the state of California and will make it much more difficult for California’s activist Court to undo the will of the people, as had been previously expressed by passage of Proposition 22 some years ago.

The In re Marriage Cases Court soundly rejected any notion that marriage between a man and a woman is a sacred tradition or a historical institution worth protecting. The shocking decision was rendered regardless of the fact that most men and women coming together, for a lifetime commitment called “marriage,” will have children and form the basic family unit. Indeed, the nuclear family unit remains the basic building block of all human society, and “marriage” between a man and a woman is an institution that has existed for thousands of years. The institution spreads across all social, historical, cultural and economic divides. For same-sex advocates, it seems readily presupposed that the generations who came before us were simply ignorant of “equality” in developing the institution of marriage. One might view such thinking as a rather vain presupposition.

In any event, the In re Marriage Cases holdings resulted in an opening of the proverbial floodgates, and the news media has been actively covering the vast number of “gay marriages” taking place ever since. While all of this might be a theoretical win for same-sex marriage advocates, it is the position of this writer that any celebrations may be premature, there is a lack of practical insight as to what “marriage” really means in the United States, and same-sex marriage advocates may have found themselves in the awkward position of hijacking a sinking ship. These are only passive observations on the issues, and it is readily admitted that equal protection theory has its place in the overall analysis in terms of dealing with the legal issues that have been raised in related litigation. As a general matter, unjustified discrimination is always suspect and deserving of careful criticism by the courts. However, protecting the natural order of human relations is justification for preserving traditional marriage and the natural consequences of the same.

With the prospect of Proposition 8 passing in November, any denunciation or celebration of the Court’s ruling may be short lived. Past history indicates that California is close to evenly divided on the issue of same-sex marriage. In fact, Proposition 22 was passed in 2000 by a significant margin (61 percent). There does not seem to be any systematic proof that cultural mores have changed since then. Large voting blocs, such as moderates, Catholics, evangelicals, Hispanics and African-Americans, seemingly continue to maintain traditional views on marriage. Ironically, a huge California turnout for Barack Obama could result in a sweeping victory for those who support the institution of marriage. Moreover, homosexuality remains taboo in many demographic groups. While same-sex marriage advocates might want to claim that this is a matter of systemic cultural ignorance, they ought to realize that there is great political risk in forcing any group into accepting gay marriage by judicial fiat.

Along these same lines, there seems to be a cogent argument that proponents of same-sex marriage should have introduced their own ballot initiative to legalize same-sex marriage. This would have avoided the public controversy associated with having the judiciary decide issues of general morality, the creation of rights not explicitly defined in the California Constitution, and/or matters which have already been decided by the people through Proposition 22. Judicial fiat over history, tradition and established law is a bad approach to social engineering. If same-sex marriage proponents are confident that the general public supports the proponents’ views, then one would think that a ballot initiative would easily qualify and be enacted by the vote of the people.

Secondly, should we really be redefining marriage at a time where approximately two-thirds of “traditional marriages” are resulting in divorce in California? Should California be redefining “marriage” when 42-45 percent of African-American women will never be married, but still be left with the charge of raising a family? [See, Kinnon, J.B., “The Shocking State of Black Marriage: Experts Say Many Will Never Get Married” (Johnson Publishing 2003); U.S. Department of Health and Human Services’ “Births, Marriages, Divorces, and Deaths: Provisional Data for 2005” (Centers for Disease Control, 2006), Vol. 54, No. 20. Also see www.divorcerate.org.]

Instead of redefining “marriage,” perhaps society ought to be focused on relieving the existing congestion in our family and child dependency courts. There are root problems that are not being dealt with. It is certainly no secret that child support enforcement in many communities is an ongoing issue, the high divorce rate for all socio-economic classes is destroying the spirits of affected children, and our judicial resources are stretched to an unimaginable limit. It does not seem that same-sex marriage advocates really gave much thought to the idea that they would be redefining a word that may have already, and quite sadly, lost most of its meaning and practical application.

Indeed, statistical data suggest that the push for same-sex marriage was selfish. If being “married” is an unrealized status for single mothers or minorities, for whatever reasons, then any push for “equality” should arguably focus on these pre-existing groups rather than pushing for marriage within a limited segment of the populace who otherwise already had the ability to participate in a domestic partnership. Why wouldn’t one try to make successful domestic partnerships the new gold standard for what constitutes commitment?

Finally, one is left to wonder why it is that anyone would want to hijack a sinking ship called “marriage.” While California has been told much about “marriage equality” in the battle leading up to the Court’s ruling, little has been said about the fact that the only thing that may be sought is an “equal” opportunity at a statistically certain failure. With all of the political ads and rhetoric that California is bombarded with this election cycle, little is being said about what will be done to decrease the divorce rate among heterosexual couples once the dust settles.

Perhaps a focus on redefining “long-term commitment,” through a proven success rate with domestic partnerships, would have been the better political move. It certainly would have proved to be a better moral high ground for same-sex advocates. Instead, California has been given a radical redefinition of “marriage” that ignores basic human biology and a cross-cultural history of the institution of marriage. No explanation is given for the desire to take over the empty hull of this sinking ship called “marriage.” One might surmise that the traditionalists would say that gay marriage advocates are just simply trying to destroy what is left of marriage. Such efforts are senseless and leave unresolved the problems that are resulting in a massive failure of the super majority of California marriages.

In sum, the basic human problems that cause divorce remain unresolved, and same-sex advocates had better carefully consider whether anything is gained by hijacking a sinking ship. For those of us who are already on the sinking ship, we need to start baling out the water and patching the holes. Our families and future generations deserve no less.

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