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Defending Marriage at the Supreme Court, DOMA: Justice Ginsburg, Marriage is Different than Milk
By Deacon Keith Fournier
March 28th, 2013
Catholic Online (www.catholic.org)
Marriage has been reduced to another commodity. In an age when children can be manufactured and grown in a surrogate when wanted - while millions are being aborted at will because they are not wanted - "Civil Rights" are being manufactured by the agencies of the civil government. They are multiplying while the real rights, the fundamental human rights, endowed upon us by God, are being taken away, one after another.
WASHINGTON,DC (Catholic Online) - On Wednesday, March 27, 2013, US v Windsor, the second Marriage case in two days, was heard by the Justices of the US Supreme Court. When the Court granted review of this case last year on December 7, 2012, it agreed to hear its primary question,
"Whether Section 3 of the Defense of Marriage Act (DOMA) violates the Fifth Amendment's guarantee of equal protection of the laws as applied to persons of the same sex who are legally married under the laws of their State"
The Supreme Court, on its own, then directed the parties to "brief and argue the following questions: Whether the Executive Branch's agreement with the court below that DOMA is unconstitutional deprives this Court of jurisdiction to decide this case; and whether the Bipartisan Legal Advisory Group of the United States House of Representatives has Article III standing in this case." The Supreme Court appointed Harvard law Professor Vicki Jackson to argue the standing issue.
So, like the case heard the day before, Hollingsworth v Perry. the legal doctrine of "standing" loomed large in prehearing speculation. The Obama administration refuses to enforce DOMA. So, a group called the Bipartisan Legal Advisory Group was formed to defend DOMA. They hired legal counsel to do so.
The facts. The Windsor case involves two women who lived together in a lesbian partnership for forty four years. They were civilly married in 2007 after Canada granted legal equivalency between homosexual or lesbian partnerships and authentic marriage between one man and one woman. Canada redefined marriage by legislative Fiat in the Civil Marriage Act. This legislation followed years of judicial activism by the homosexual equivalency movement, province by province, changing the definition of marriage.
One of the women, Thea Spyer, died when the couple lived in New York State which recognized their lesbian partnership as a marriage. The Federal Government of the United States did not recognize Edith Windsor as a spouse for purposes of calculating federal estate taxes. That is because the Defense of Marriage Act (DOMA), which is Federal law, recognizes marriage by definition as solely between one man and one woman.
Thea Spyer left her estate to Edith Windsor. The size of the Estate triggered a Federal Estate tax of $363,000.00. Edith Windsor filed a lawsuit asserting that she would not owe the money if she had married a man. So, one of the interesting twists in this case is that the Federal Estate tax is now being used as a tool in the overall effort to redefine marriage in the United States.
The Defense of Marriage Act (DOMA) was passed in 1996 by large majorities in both the House and the Senate. It was signed into law by President Bill Clinton. For purposes of federal law, which includes Federal Estate Taxes, DOMA defines marriage as a union between one man and one woman. Up until February of 2011, DOMA was defended, whenever it was challenged, by the Federal Government. That included the Clinton and Bush administrations.
Attorney General Holder announced that President Obama had decided it was unconstitutional and directed the Justice Department to no longer defend it. That is what led to the formation of the "Bipartisan legal Advisory Group" which stepped in to defend it as this case wound its way through the various Court cases filed against it. This case became the one the Court chose to determine whether this Supreme Court will decide that DOMA violates the Constitution.
Most observers of the argument on Wednesday, unlike Tuesday's argument, do not expect that the Court will use the standing issue to keep this case from being used to change the legal status quo concerning DOMA. The questions from the Justices indicate they may be ready to strike DOMA, even if for differing reasons. Some seemed to indicate that marriage is properly a State issue and may strike down DOMA based upon that premise. Others seem ready to redefine marriage - and to use this case to do so.
Ruth Bader Ginsburg seemed willing to use the Federal Estate tax as a reason to redefine the institution of Marriage. Among her several comments, and the one which caught the imagination of the main stream media, was her sarcastic analogy between marriage and milk. She opined concerning the emergence of "two kinds of marriage; the full marriage, and then this sort of skim milk marriage." Justice Ginsberg, marriage is very different than milk.
Sadly, marriage has been reduced to another commodity in our culture. In an age when children can be manufactured and grown in the body of a surrogate when wanted - while millions are being aborted at will because they are not wanted - "Civil Rights" are being manufactured by the agencies of the the civil government. They are multiplying - while real rights, fundamental human rights, which have been endowed upon us by God, are being taken away, one after another.
True marriage is the preeminent and the most fundamental of all human social institutions. It is a relationship defined by nature and protected by the natural law that binds all men and women. It finds its foundation in the order of creation. Civil institutions do not create marriage nor can they create a right to marry for those who are incapable of marriage.
The institutions of government should defend marriage. Government has long regulated marriage for the true common good. For example, the ban on polygamy and age requirements were enforced in order to ensure that there was a mature decision at the basis of the Marriage contract.
If the Supreme Court becomes the tool by which marriage is redefined the precedent established will leave no room for any limitation on what can constitute a marriage. To limit marriage to heterosexual couples is not discriminatory. Homosexual couples cannot bring into existence what marriage intends by its very definition. To confer the benefits that have been conferred in the past only to stable married couples and families to homosexual paramours is bad public policy.
Theologians and Philosophers speak of ontology as the science or philosophy of being. For example, a rock is a rock and not a cabbage; a man is a man and a woman is a woman. Marriage is ontologically between a man and a woman, ordered toward the union of the spouses, open to children and formative of family.
Those who claim that this is all a matter of tolerance are the most intolerant. Notice how intolerant they are of people who, though respecting the dignity of every person including homosexuals, also insist that marriage is what it is. This will only worsen in the days ahead. The "Equal protection" argument will be used as a weapon against the Catholic Church, indeed any Church or religious body which will not comply with the States new civil order.
Christians must not participate in the destruction of the institution of marriage. The Sacred Scriptures and unbroken teaching of the Church confirm that marriage is between one man and one woman. Of that there is no doubt. Those who attempt to argue otherwise within the various Christian communities are being disingenuous. They are also false teachers.
Catholic Christians must lead the defense of Marriage at every level. Our Church is the most vocal and offers the clearest defense of marriage - and the family and society founded upon it. That means we will face the brunt of the persecution which will come.
In his apostolic exhortation on the Eucharist, the Sacrament of Charity, then Pope Benedict summarized the duty of the Catholic faithful when confronted with an assault on authentic marriage: "Marriage and the family are institutions that must be promoted and defended from every possible misrepresentation of their true nature, since whatever is injurious to them is injurious to society itself."
The Congregation for the Doctrine of the Faith of the Catholic Church wrote these words in 2003, "The Church's teaching on marriage and on the complementarity of the sexes reiterates a truth that is evident to right reason and recognized as such by all the major cultures of the world. Marriage is not just any relationship between human beings. It was established by the Creator with its own nature, essential properties and purpose."
"No ideology can erase from the human spirit the certainty that marriage exists solely between a man and a woman, who by mutual personal gift, proper and exclusive to themselves, tend toward the communion of their persons. In this way, they mutually perfect each other, in order to cooperate with God in the procreation and upbringing of new human lives."
These words are the truth. Pray for the Justices of the US Supreme Court. Pray for Marriage. Pray for the United States of America. Get ready.
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