The breaking down of the family unit in a society is often systematic and hence, explanable. We are no longer playing with imagined theories. History and reality now provide us with real examples.
One example is Canada. 1 But as the unofficial cultural captial of the world, America is the focus of this writing.
Formally a conservative culture rooted in Christian tradition, America went through a sexual revolution in the 1960s. “Free love” i.e. the idea that sex was to be experienced freely with as much fun and as little responsibility as possible, replaced conventional mores where sex is to be kept for marriage.
Public nudity and sexual themes became a common feature on TV and in the theatres. Sexually permissive attitudes accepting greater sexual freedom and experimentation soon became the norm.
The scene quickly degenerated from carefree experimentation into a disease-ridden mess. From 1964 to 1968, the rates of syphilis and gonorrhoea in California rose 165%. 2 Genital herpes saw a 500% increase since 1976. 2
Today, one in four American teens have a sexually transmitted disease (STD). 2 Four in five American women above fifty would have got infected with the human papilloma virus (HPV). 2
These radical shifts in the moral landscape also brought about two critical legal changes to the marriage institution – developments that would tear down the family unit in the American society.
- No-Fault Divorce contributed to the Epidemic of Fatherlessness
The first critical change to the marriage institution was the introduction of no-fault divorce. With sexual permissiveness promoted in culture, much stress was placed on marriage fidelity.
Previously, persons seeking divorce would have to prove one of the 3As – abuse, abandonment or adultery. But in 1969, the State of California legalized no-fault divorce to simplify legal proceedings. 2
No-fault divorce permits divorce for any reason – or for no reason at all. Marriage is now less than a contract. You can’t tear up your insurance contract without consent of the insurance company, but you can now walk out of your marriage – anytime. Soon, virtually every state followed.
Culture influences law, and law changes culture. Divorces skyrocketed by almost two and a half times two decades from 1960. 3 Between 1970 and 1996, welfare expenditures amounting to US$229 billion can be attributed to the breakdown of the marriage culture. 4 But the most innocent victims are the children.
In the 1950s, only 11% of American children experienced the pain of seeing their parents divorce. 3 This grew to 50% by the 1970s. 3 Broken families beget brokenness in children. Children who saw their parents walk out on each other, see lesser of marriage, and are less inspired to be faithful partners.
Today, 40% of all American children are not even born to mothers who are married. Among the blacks, the number of births out of wedlock jumps to 70%. 4 American children are fatherless.
Is this a cause for concern? Sociologist W.Bradford Wilcox, upon summarising the “best psychological, sociological, and biological research,” writes:
“Studies of crime indicate that one of the strongest predictors of crime is fatherless families.. [B]oys raised outside of an intact nuclear family were more than twice as likely as other boys to end up in prison.. [C]riminals come from broken homes at a disproportionate rate: 70% of juveniles in state reform schools, 72% of adolescent murderers, and 60% of rapists grew up in fatherless homes.” 4
Fathers also matter for girls. Wilcox explains how teenage pregnancy correlates to fatherlessness:
“One study found that about 35% of girls in the U.S. whose fathers left before the age 6 became pregnant as teenagers, that 10% of girls in the U.S. whose fathers left them between the ages of 6 and 18 became pregnant as teenagers, and that only 5% of girls whose fathers stayed with them throughout childhood became pregnant.” 4
Even a left-leaning research institution Child Trends, concludes:
“[I]t is not simply the presence of two parents… but the presence of two biological parents that seems to support children’s development… [R]esearch clearly demonstrates that family structure matters for children, and the family structure that helps children the most is a family headed by two biological parents in a low-conflict marriage.” 4
- Same-Sex Marriage Deconstructs Family
Fatherless boys grow up to be self-seeking men, not unlike how most bullies are once bullied. When one has not been loved, or empathized with, he grows not being able to give love or empathy to others. It’s not difficult to see why fatherless boys grow up to abandon their child or the mother (of the child), when faced with unexpected parenthood. The wounds of the society deepen with each broken generation. Finally, it is time to challenge the marriage institution altogether.
Despite the brokenness in America’s culture, same-sex marriage activists continued to face opposition in their push to redefine marriage. Even in the most left-leaning California, in a referendum known as Proposition 8, Californians voted “no” to same-sex marriage. Not known to be people who sit well with consensus, same-sex marriage activists sought to overturn the power of the people – by taking these outcomes to court. The Judicial began to play a most important role in this ensuing political war.
Understanding America’s System
To understand the significance of the role the Judicial played in this debate, it is necessary to understand America’s political system. America’s national government – or federal government – is delegated by 50 independent States. These States came together by a Constitution that governs them. This Constitution reads: “We the People of the United States.. do ordain and establish this Constitution for the United States of America.”
This implies a few things. First, it is the “We the People” that “establish” the Constitution i.e. the American people hold the highest power of governance. Second, the Constitution was established “for” the United States of America not “by” the United States of America. This means the federal government does not have preeminence over the States but the States retain autonomy to govern their people independently. 5
Furthermore, the federal government is made up of the Legislative (Congress), Executive (President and Cabinet) and Judicial (Supreme Court). Each has its specific functions: The Legislative makes laws. The Executive implements laws. The Judicial interprets laws. The system ensures a system of checks and balances, and no individual or group gains too much control. E.g. the President can veto bad laws passed by Congress; Congress can remove the President from office in exceptional circumstances; Supreme Court can overturn unconstitutional laws. 6
Defense of Marriage Act (DOMA) – Federal Legislation struck down by Judicial
The political drama began with a pre-emptive legislation, when in 1996, President Bill Clinton, supported by an overwhelming legislative majority, signed the Defense of Marriage Act (DOMA). DOMA prohibited federal recognition of same-sex marriages.
However, in 2003, Massachusetts, acting on its autonomy as a State, legalized same-sex marriage. As each State has the right to govern her own people under the Constitution, DOMA, drafted and implemented at the federal level, cannot overwrite Massachusetts’ legislation. However, it soon became clear that people who do not play by the rules of the Constitution could abuse this political system.
Following Massachusetts, a handful of states responded likewise while others proceeded to pass same-sex marriage bans. This comes to a head when “married” same-sex couples fought for recognition of their marriages in the courts of those States where same-sex marriage was banned. The results of these decisions were challenged till it went all the way up to the federal Supreme Court, who took up the offer to be the final arbitrator of the debate.
In 2013, the Supreme Court struck down DOMA with a controversial 5-4 decision (United States v. Windsor). The means of Judicial tyranny – the idea where 9 unelected federal judges might possess power to overrule “We the People” in all 50 States of America – became a powerful activism tool to usurp the rights of the people (Proposition 8 referrendum result was overturned), overrule state and federal legislation, and stop all constructive debate among people.
Judicial Legislates Same-Sex Marriage
United States vs Windsor imposes on States that ban same-sex marriage, telling them they must give recognition to “same-sex couples” who are married elsewhere, regardless of their bans. It is not far to imagine what the Judicial would be called upon to do next.
In 2015, by the same means of appealing against outcomes of lower courts, the federal Supreme Court were called upon once again. This time, they ruled with yet another 5-4 decision, making same-sex marriage a constitutional right for all Americans (Obergefell v. Hodges).
In justifying their decision, the majority (the 5 justices of the Supreme Court who ruled in favour of same-sex marriage) wrote that previous generations of justices have somehow, failed to notice this right; and that with “new insight” that the Supreme Court now has, this “claim to liberty must be addressed.” 4
Hence, by granting this “liberty” demanded by the Constitution to all Americans, the Supreme court essentially legislates same-sex marriage, and fundamentally changed what marriage meant in “kind.”
Arguments of the Dissenting Judges
It is one thing to form an opinion based on what is ruled, but true sincerity, is to look into the best arguments of your dissenters. Informed decision can only be made when arguments on both sides are addressed, objectively and comprehensively, without partiality. This is the only way to move forward for societal good – when policies are based on facts, not mood.
The four Supreme Court justices who disagreed with the majority of five (in the 5-4 decision), wrote dissenting opinions telling of their understanding of the role of the Judicial, and of their intellectual foresight in critiquing the court’s decision. Their opinions are analytically sharp and worthy of reflection.
Chief Justice John Roberts, who helms the Supreme Court, was one of the four justices who dissented against the court’s decision. He opens his opinion with a reminder that the Supreme Court “is not a legislature.. Under the Constitution, judges have power to say what the law is (interpretative role), not what it should be (legislative role).” But the Supreme Court had acted as a legislative authority, legalizing same-sex marriage – the very legislation the Executive and Legislative government sought to prevent through DOMA, a legislation which the Supreme Court struck down in 2013. The tyranny of the Judicial has come full circle. Roberts decries,
“The majority’s decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution or this Court’s precedent.” 4
With this overreach, the Supreme Court “invalidates the marriage laws of more than half the States and orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs.” How can the Supreme Court depend upon the mere will of nine, to redefine the nature of marriage which until two decades ago, meant the exclusive, complementary union of a man and a woman for every nation and civilisation? “Just who do we think we are?” exclaims the Chief Justice. 4
Justice Antonin Scalia who also dissented against the court’s decision, echoed,
“This practice of constitutional revision by an unelected committee of nine, always accompanied by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themseves.” 4
The repeated overreach in role and power by the Judicial, affirmed by American elites who are vested in this issue, has turned the Supreme Court into an unconstitutional, super-legislative power. What can be more anti-constitutional than this? Scalia further reminds of the utter lack of representation in this unelected court of nine:
“[F]our of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between… Not a single evangelical Christian (a group that comprises about 25% of Americans), or even a Protestant of any denomination.. [T]o allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.” 4
But what about the right to “liberty?” The third dissenter, Justice Thomas Clarence addressed this main argument of the Court. In “the American legal tradition,” he writes, “liberty has long been understood as individual freedom from governmental action, not as a right to a particular governmental entitlement.” That the Government can grant people “liberty” by giving recognition of their marriage, is moot, if the liberty of people in same-sex relationships wasn’t being infringed in the first place. With this, Thomas notes:
“[T]hey have been able to cohabitate and raise their children in peace. They have been able to hold civil marriage ceremonies in States that recognize same-sex marriages and private religious ceremonies in all States.. Far from being incarcerated or physically restrained, petitioners have been left alone to order their lives as they see fit.” 4
Indeed, liberty is not found through external recognition. For the court to presume themselves as being able to grant “liberty” through government recognition is mind boggling. Also, should the court now grant liberty demanded by the constitution to other “sexual minorities” demanding different “kinds of marriage union?” The fourth dissenter, Justice Samuel Alito, addressed this point. He was sensitive to how the fundamental assumption the court made about the purpose of marriage – that it is based on intensity of romantic feelings and mutual consent – would have been different with people for the past millennia. “Marriage was inextricably linked to one thing that only an opposite-sex couple can do: procreate.” 4
Governments do not stick their noses into people’s love affairs. They do not survey populations on their love interests. Ministers do not find out who you are dating. States do not hold parties to celebrate you being in love. No governments have ever invested into the romantic interests of its people. Why? Because Governments have no interest whatsoever on our love lives. But Governments get rightly interested in marriage, because the union of a man and a woman is a procreatable one. When the nature of a union is one that can bring about offsprings, it makes sense that the State becomes vested and invested – because children are the future of all nations. This is the only reason why natural marriage is institutionalised and promoted by States in the first place. Alito rightly points out:
“States formalize and promote marriage, unlike other fulfilling human relationships, in order to encourage potentially procreative conduct to take place within a lasting unit that has long been thought to provide the best atmosphere for raising children.” 4
If the principle of marriage is merely to formalise unions because of strong romantic interests, why does it have to stay as a union of two? What principles would distinguish a “two-person” union from a “three-person” union – if the “three” claim to love just the same? Chief Justice Robers rightly wonders “whether States may retain the definition of marriage as a union of two people.” 4
“Although the majority randomy inserts the adjective “two” in various places, it offers no reason at all why the two-person element of the core definition of marriage may be preserved while the man-woman element may not. Indeed, from the standpoint of history and tradition, a leap from opposite-sex marriage to same-sex marriage is much greater than one from a two-person union to plural unions.. If the majority is willing to take the big leap, it is hard to see how it can say no to the shorter one.” 4
In other words, by introducing same-sex marriage, the marriage institution is fundamentally changed in kind. Marriage isn’t merely about intense romantic interest. If it is so, what principles would distinguish the intense love within a two-person union, from the intense love within a three-person union, a five-person one, or any other kinds of union our imagination allows? The nature of a man-woman marriage is that it is an institution that is “child-centric” in kind. When we redefine marriage, the marriage institution changes fundamentally in nature – it is no longer of the kind that is “child-centric”, but becomes of the kind that centres on “intensity of love.” With “love” being such a vague, subjective notion, family essentially, can mean anything and everything. And if it means anything and everything, it really means – nothing.
Moreover, if family fundamentally is centered upon “intensity of love,” what safeguards are there to protect children against abuses, such as perversity, or sex-centric unions, as one can “marry” into any kinds of “harem structures” of his choice, then legally file for adoption as a “marriage right”? On top of fatherlessness and motherlessness imposed by same-sex parenting, the young and vulnerable will also be victimized by sexualization into alternative sexual lifestyles or behaviours. Sexual abuses are expected to increase under such environments and culture.
Therefore, the push for same-sex marriage is one which requires deep consideration of those who care for children and justice. We are forced to choose between giving priority to children’s rights, or to same-sex marriage activists’ “civil rights” claims – a topic worthy of discussion in my next installment.
- H. Khian Leo, “Sexuality Education: Unshakable Foundations.”
- Bradford Wilcox, “The Evolution of Divorce.” <http://www.nationalaffairs.com/publications/detail/the-evolution-of-divorce>
- Ryan Anderson, “Truth Overruled: The Future of Marriage and Religious Freedom.”