As I am writing this introduction in the afternoon
of Wednesday, April 23, 2014, oral arguments in the case of Geiger et al v.
Kitzhaber et al (CASE # 6:13-cv-01834-MC) are being heard in Judge Michael
McShane’s courtroom at the U.S. Courthouse in Eugene, Oregon. I wanted the following document I wrote
to be included in the court record for the case so Judge McShane would have to
consider it before making his ruling, but my attempts to accomplish that have
seemingly failed. The Defendant
attorneys employed by the Oregon Department of Justice have informed me that I
am not a client in the case even though I have been a citizen of Oregon for 50
of the almost 60 years I have been alive.
Evidently, because I am not their client, it would be unethical for the Defendant
attorneys to act on my behalf.
Consequently, I have asked Oregon Attorney General Ellen Rosenblum and
Defendant attorney Sheila Potter to ask Oregon Governor John Kitzhaber for his
permission to include my document in his name on behalf of the People of
Oregon.
I am opposed to legalizing same-sex marriage in
Oregon or in any other state in the United States, but for reasons other than
the usual reasons. We have reached
a time in American history when we must restructure our society to everyone’s
benefit, not just to the benefit of a few. Our task is difficult, and it will require magnanimity from
all. But we can do it, and we must
do it. The following document is a
start.
Steven A. Sylwester
*
The Honorable Judge Michael McShane of the U.S. District
Court for Oregon,
Laws discriminate. All laws discriminate.
Every law ever written discriminates in some way against someone. Society has a right and an obligation
to make legal discriminations, because law and order cannot otherwise be
accomplished.
Webster’s Dictionary (1976) defines the word
“discriminate” as: “1 a : to make a
distinction b : to use good judgment
2 : to make a difference in
treatment or favor on a basis other than individual merit.”
Webster’s Dictionary (1976) defines the word
“discrimination” as: “1 : the act of
discriminating :
DIFFERENTIATION 2 : the quality or power of finely
distinguishing 3 : the act , practice, or an instance
of discriminating categorically rather than individually.” As a synonym of “discernment,” the word
“DISCRIMINATION stresses the power to distinguish and select what is true or
appropriate or genuinely excellent.”
In other words, nothing about discrimination is
inherently bad or evil, or even just unacceptable. Indeed, the word “discrimination” actually defines something
that is good — even something that could be rightly described as “genuinely
excellent.” That is a given, and
that is indisputable.
At times in history, sentiments change; what was
once deemed fair by society is suddenly deemed unfair by some, and then by
most. At such times, it becomes
right — even righteous — to reconsider the discriminations in the law, but only
if such reconsiderations are done objectively by those who can be impartial,
who can see things clearly without being overly influenced by personal emotions
and/or the possibility of personal gains.
The United States of America is now at a time in
its history when it is right to reconsider the discriminations in the law
regarding what is known as marriage.
To be impartial, to be objective, to be right thinking in the needed
reconsideration, all of everything must be looked at, examined, and pondered,
because what is truly the right thing to do is likely to be invisible to most
people if not to nearly all people.
Marriage is something that is 6,000 years old in
some respects, but is something that is only 75 years old in other respects
that are no less important. The
challenge is to correctly identify the discriminations in U.S. law that can and
should be changed regarding what is known as marriage, and to understand that
none of those changes have to necessarily be limited to a distinction of
“marriage” as a legal category.
Indeed, any reconsideration of existing discriminations should be done
with an aim to uniformly benefit all citizens to the greatest extent possible,
and to not simply benefit only those few who have fought long and hard for
their own self-interest.
If one has ever known unfair discrimination
viscerally and unavoidably, one should have learned this truth: The problem of
unfair discrimination is never solved by moving its impact from an existing
group to a smaller group, because such a solution actually worsens the impact
of the unfair discrimination on the smaller group; the problem of unfair discrimination
is only solved when it is solved for everyone, not just for a few.
One must think of an unfair discrimination as a
pain with a defined numerical value, such as 100. If 100 people share in that pain together, each person
carries a “1.00” burden in suffering.
But if the unfair discrimination is removed from 20 people, the
remaining 80 people each now carry a “1.25” burden in suffering — a 25%
increase. How could such a thing
be true? I ask: How could it not
be true? In the example, it is not
that 20 fewer people are now being unfairly discriminated against, but rather
it is that 20 more people are now participating in the unfair discriminations
against the 80 people who are now sharing in a pain that has not been
diminished one bit. The hard truth
in that is this: Wherever unfair discriminations exist, those who are not being
unfairly discriminated against are complicit in the unfair discriminations
against others.
Another truth regarding unfair discrimination is
this: Those who suffer the most are those who suffer in silence and despair;
their voices are never heard, and their tears are never seen — their screams
are silent.
In America today, there are at least 10 million
women who are single parents, and many of them have more than one child — some
have more than two. Very few of
those women are wealthy. It is
safe to say that almost all of them are poor, and many of them are desperately
poor. Consequently, there is no
organized political movement advocating in the streets, in the media, in state
legislatures, in Congress, or in the federal courts on behalf of those women
for the benefit of those women.
Quite literally, those women are on their own, each one by herself
individually — alone against the world.
I know a little bit about how some of that feels
because I was born without a left hand 60 years ago this June. I know what it feels like to be alone
in a crowd, to be a minority of one in a world that favors the majority, a
world in which judgments based on prejudices are deemed fair and reasonable by
educated people — a world that smiles while it is being harsh and unforgiving
toward others, yet feels justified in crying bitterly over any insults or
inconveniences it must temporarily endure.
A lesbian same-sex marriage activist I know tells
me that government laws now grant 1,138 different benefits to only those
citizens who are married. As
someone who has now been married for 37 years, I find that hard to believe
because I would be challenged to list just 20 of those benefits. But for the sake of argument, I will
agree that married people now receive 1,138 different benefits that unmarried
people do not now receive.
My question is: How many of those 1,138 benefits
are convenience benefits, which I define as those benefits that are free, that
have no cost to them whatsoever?
My conservative guess is that probably more than 75% of those 1,138
benefits are convenience benefits, and it would not surprise me if the actual
number was greater than 95% — that is: more than 1,081 of the 1,138
benefits. Does anyone actual know
how many of those 1,138 benefits have a cost to them that must be paid by
taxpayers in some way? I admit it:
I do not know. But the question
should be answered. What if the
true and accurate answer is that only 50 of those 1,138 benefits have a cost to
them that impacts taxpayers in some way, either by reducing tax revenues taken
in by governments or by increasing payouts that governments are legally
obligated to make? Would knowing
which benefits have a cost to them matter? Should it matter?
I answer “yes” and “yes” to the last two
questions.
Indeed, it is imprudent, unwise, irresponsible, and
perhaps illegal to decide about same-sex marriage without taking into account
its actual costs to taxpayers, both its indisputable known costs and its likely
costs resulting from perceivable unintended consequences. If legalizing same-sex marriage creates
any actual costs whatsoever that must be paid by taxpayers in any way, all
taxpayers who are affected should have legal standing in court. Yet the matter of taxpayer costs has
been swept under a rug, and so has been made invisible as if no such taxpayer
costs exist.
It is interesting to note that hardcore same-sex
marriage advocates know that the fight is about benefits, especially those
benefits that are not convenience benefits — that is: the fight is to win those
benefits that have costs that must be paid by taxpayers. On March 21, 2013, EUGENEweekly
published the article “Why Get Married?” by award-winning lesbian writer Sally
Sheklow. The article included the
following: “Forget demanding equal
entitlement to Social Security, survivor rights and spousal insurance. Of
course we want equal rights, but saying gay and lesbian couples deserve the
same benefits as hetero married couples causes otherwise reasonable folks to
slip into a bizarre “special rights” fantasy and shut down.” The article described the political
strategy that should be employed because it works: “We must talk about why loving, committed couples want to marry. Love,
commitment, marriage. People get that.”
The entire article can be read at: http://www.eugeneweekly.com/article/why-get-married
Sally Sheklow is right: use the political strategy
that works. However, the federal
courts cannot be duped by sentiments like “Love,
commitment, marriage.” when considering the legal issues surrounding
same-sex marriage. The courts must
limit themselves to The Constitution of the United States, a document that does
not include The Declaration of Independence in any way, shape, or form, not
even by mere mention. To be
specific, the U.S. Constitution does not include the words: “We hold these truths to be self-evident,
that all men are created equal, that they are endowed by their Creator with
certain unalienable Rights, that among these are Life, Liberty and the pursuit
of Happiness.” Though those
words are certainly at the heart of America’s soul, they are not in the U.S.
Constitution.
The U.S. Constitution has few words to ponder
regarding same-sex marriage. By my
reading, I find these:
“We the People of the United
States, in Order to form a more perfect Union, establish Justice, insure
domestic Tranquility, provide for the common defence, promote the general
Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do
ordain and establish this Constitution for the United States of America.”
“Article. I.
Section. 1. All legislative Powers herein granted shall be vested in a Congress
of the United States, which shall consist of a Senate and House of
Representatives.”
“Article. I.
Section. 8. The Congress shall have Power To lay and collect Taxes, Imposts and
Excises, to pay the Debts and provide for the common Defence and general
Welfare of the United States; but all Duties, Imposts and Excises shall be
uniform throughout the United States; …
To make all Laws which shall be necessary and proper for carrying into
Execution the foregoing Powers, and all other Powers vested by this
Constitution in the Government of the United States, or in any Department or
Officer thereof.”
“Article. I.
Section. 9. … No Money shall be drawn from the Treasury, but in Consequence of
Appropriations made by Law; and a regular Statement and Account of the Receipts
and Expenditures of all public Money shall be published from time to time.”
“Article. III. Section. 1.
The judicial Power of the United States, shall be vested in one supreme Court,
and in such inferior Courts as the Congress may from time to time ordain and
establish.”
“Article. III. Section. 2.
The judicial Power shall extend to all Cases, in Law and Equity, arising under
this Constitution, the Laws of the United States, and Treaties made, or which
shall be made, under their Authority; …”
“Article. IV.
Section. 1. Full Faith and Credit shall be given in each State to the public
Acts, Records, and judicial Proceedings of every other State; And the Congress
may by general Laws prescribe the Manner in which such Acts, Records and
Proceedings shall be proved, and the Effect thereof.”
“Article. IV. Section. 2.
The Citizens of each State shall be entitled to all Privileges and Immunities
of Citizens in the several States.”
“Article. IV. Section. 4.
The United States shall guarantee to every State in this Union a Republican
Form of Government, and shall protect each of them against Invasion; and on
Application of the Legislature, or of the Executive (when the Legislature
cannot be convened) against domestic Violence.”
“Article. VI.
… This Constitution, and the Laws of the United States which shall be made in
Pursuance thereof; and all Treaties made, or which shall be made, under the
Authority of the United States, shall be the supreme Law of the Land; and the
Judges in every State shall be bound thereby, any Thing in the Constitution or
Laws of any State to the Contrary notwithstanding.”
“Amendment IX. The
enumeration in the Constitution, of certain rights, shall not be construed to
deny or disparage others retained by the people.”
“Amendment X. The
powers not delegated to the United States by the Constitution, nor prohibited
by it to the States, are reserved to the States respectively, or to the
people.”
*
“Amendment
XIV.
Section 1. …
No State shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall any State deprive any
person of life, liberty, or property, without due process of law; nor deny to
any person within its jurisdiction the equal protection of the laws. …
Section 5. The
Congress shall have power to enforce, by appropriate legislation, the
provisions of this article.”
*
IN BRIEF (regarding same-sex marriage): The Constitution requires that “All legislative Powers … shall be vested in
a Congress of the United States” that “shall
have Power To lay and collect Taxes … to … provide for the … general Welfare of
the United States” and “To make all
Laws which shall be necessary and proper for carrying into Execution the
foregoing Powers, and all other Powers vested by this Constitution in the
Government of the United States, or in any Department or Officer thereof.” Furthermore, “No Money shall be drawn from the Treasury, but in Consequence of
Appropriations made by Law” that was legislated by Congress. Additionally, “Full Faith and Credit shall be given in
each State to the public Acts, Records, and judicial Proceedings of every other
State; And the Congress may by general Laws prescribe the Manner in which such
Acts, Records and Proceedings shall be proved, and the Effect thereof.”
In
other words, all laws are legislated by Congress and only by Congress. The “judicial Power” granted to the
Courts does not include the right or the ability to participate in the
legislative process in any way, or to enact any law that was not legislated by
Congress. The Courts do not have
the authority to edit law to pass Constitutional tests or for any other
reason. The Courts are limited two
things, either validating existing laws according to the U.S. Constitution or
invalidating existing laws according to the U.S. Constitution, and to ever
invalidate a law is to immediately make it null and void and no longer
applicable — to send it back to Congress with a clear explanation of why the
law was ruled unconstitutional so Congress can decide what it wants to do and
how it wants to legislate a solution if a solution is needed.
The legislative process is about intents that are
carefully and painstakingly and contentiously carved into words that can be so
meaningful that votes are won or lost over whether just one word is either
included or excluded in the final bill.
It is therefore outrageous to think that the Courts can change words in
the law, for to ever give the Courts the authority to change even just one word
in one law is to commit treason: to usurp Constitutional power that was only
given to Congress.
*
The word “marriage” is not in the U.S.
Constitution, nor is any wording of any sort even remotely associated with even
the concept of marriage in any way.
Therefore, “Amendment X” (see above) applies — that is: The powers not delegated to the United
States by the Constitution, nor prohibited by it to the States, are reserved to
the States respectively, or to the people. Simply: “marriage” is for the States to decide, or the
people; it is not the business of the federal courts.
Even so, the entirety of the legal argument
supporting same-sex marriage comes from a self-serving interpretation of the
Equal Protection Clause found in the 14th Amendment (Amendment XIV above): nor (shall any State) deny to any person
within its jurisdiction the equal protection of the laws. Though the
amendment specifies “any person,” the
same-sex marriage argument champions the distinction that two people who are
married should be entitled to “protection”
(read: benefits) that single people can be denied, and so any two people should
be allowed to marry, even two people who cannot possibly procreate by
themselves. No thought at all is
given to “equal protection” for
single people; rather, same-sex marriage proponents grant that any two people
together in marriage should be entitled to “protection”
that can be legally denied to “any
person” who happens to be single.
It is remarkable to note the obvious, which is
“Section 5” of Amendment XIV: The
Congress shall have power to enforce, by appropriate legislation, the
provisions of this article.
“The Congress” is not the Courts, and the U.S. Constitution is
unmistakably specific in designating who shall
have power to enforce, by appropriate legislation, the provisions of this
article — the Congress!
The Equal Protection Clause is fourteen words taken
out of its context in the 14th Amendment, which was ratified on July 9, 1868,
in response to the ending of America’s Civil War. “Section 1,” which includes the Equal Protection Clause, was
created to guarantee citizenship rights for former slaves.
But the term “equal
protection” should be defined anyway, because it too leads back to Congress
and not to the remedies of the Courts.
Webster’s Dictionary (1976) defines the word
“equal” as: “1 a (1) : of the same measure, quantity,
amount, or number as another : LIKE (2) : identical in mathematical value or logical denotation : EQUIVALENT b : like in
quality, nature, or status c : UNIFORM 2 : regarding or
affecting all objects in the same way : IMPARTIAL.”
Webster’s Dictionary (1976) defines the word
“protection” as: “1 : the act of
protecting : the state of being
protected 2 a : one that protects
b : the oversight or support
of one that is smaller and weaker 3 : the freeing of the producers of a
country from foreign competition in
their home market by high duties or other restrictions on foreign
competitive goods …”
Webster’s Dictionary (1976) defines the word
“protect” as: “1 a : to cover or
shield from injury or destruction :
GUARD b : to save from contingent financial loss 2
: to shield or foster by a protective tariff.”
Webster’s Dictionary (1976) defines the word
“contingent” as “1 : likely but not
certain to happen : POSSIBLE 2
a : happening by chance or unforeseen causes b : intended for
use in circumstances not completely foreseen c :
UNPREDICTABLE 3 : dependent on or conditioned by something else 4 : not logically necessary; esp : EMPIRICAL,
FACTUAL 5 : not necessitated : FREE.”
Very plainly, the definition of “equal protection” does not describe the
granting of 1,138 benefits to all people who are in committed relationships;
certainly, it does not mean that those who marry deserve a reward. Rather, “equal protection” is a term that describes government acts of
oversight and support accomplished by laws that are LIKE, EQUIVALENT, UNIFORM,
and IMPARTIAL to those who need to be guarded or shielded from injury or
destruction, especially those who are smaller and weaker (children) and those
who are vulnerable to contingent financial loss (stay-at-home parents).
It is redundant, but it bears repeating: only
Congress has the right to legislate laws, only Congress has the right to lay
and collect federal taxes, and only Congress has the right to spend money from
the U.S. Treasury. The Courts can
either validate or invalidate what the Congress does, but the Courts cannot
order the Congress to pass laws that the Courts write.
If the Courts rule that current marriage law in
Oregon violates the U.S. Constitution, the structures of marriage in Oregon are
thereby invalidated; they are made null and void and are no longer applicable
because something that is unconstitutional is something that is unallowable —
it is forbidden. The Courts do not
have the option to fix the problem by changing the law, because to do so is to
legislate, which is something the Courts have no right to do.
But the problem is deeper than that, much deeper,
and it has to do with the “respects” of marriage hinted at above that are 75 years
old. Specifically, it has to do
with Social Security Survivor Benefits.
The original Social Security Act became law in 1935, but it was quickly
found to be deficient. Missing in
the original legislation were survivor benefits for widows and children,
including orphans, so the Social Security Act was amended in 1939 to include
the needed survivor benefits.
The following are excerpts from the 1935 law:
TITLE V- GRANTS TO STATES FOR MATERNAL AND CHILD WELFARE
PART 1-MATERNAL AND CHILD HEALTH
SERVICES
APPROPRIATION
SECTION 501. For the purpose of
enabling each State to extend and improve, as far as practicable under the
conditions in such State, services for promoting the health of mothers and
children, especially in rural areas and in areas suffering from severe economic
distress, there is hereby authorized to be appropriated for each fiscal year,
beginning with the fiscal year ending June 30, 1936, the sum of $3,800,000. The
sums made available under this section shall be used for making payments to
States which have submitted, and had approved by the Chief of the Children s
Bureau, State plans for such services.
PART
2-SERVICES FOR CRIPPLED CHILDREN
APPROPRIATION
SEC.
511. For the purpose of enabling each State to extend and improve (especially
in rural areas and in areas suffering from severe economic distress), as far as
practicable under the conditions in such State, services for locating crippled
children and for providing medical, surgical, corrective, and other services
and care, and facilities for diagnosis, hospitalization, and aftercare, for
children who are crippled or who are suffering from conditions which lead to
crippling, there is hereby authorized to be appropriated for each fiscal year
beginning with the fiscal year ending June 30, 1936, the sum of $2,850,000. The
sums made available under this section shall be used for making payments to
States which have submitted, and had approved by the Chief of the Children s
Bureau, State plans for such services.
PART
3- CHILD WELFARE SERVICES
SEC.
521. (a) For the purpose of enabling the United States, through the Children s
Bureau, to cooperate with State public-welfare agencies establishing,
extending, and strengthening, especially in predominantly rural areas,
public-welfare services (hereinafter in this section referred to as
child-welfare services ) for the protection and care of homeless, dependent,
and neglected children, and children in danger of becoming delinquent, there is
hereby authorized to be appropriated for each fiscal year, beginning with the
year ending June 30, 1936, the sum of $1,500,000. Such amount shall be allotted
by the Secretary of Labor for use by cooperating State public- welfare agencies
on the basis of plans developed jointly by the State agency and the Children s
Bureau, to each State, $10,000, and the remainder to each State on the basis of
such plans, not to exceed such part of the remainder as the rural population of
such State bears to the total rural population of the United States. The amount
so allotted shall be expended for payment of part of the cost of district,
county or other local child- welfare services in areas predominantly rural, and
for developing State services for the encouragement and assist- ance of
adequate methods of community child-welfare organization in areas predominantly
rural and other areas of special need. The amount of any allotment to a State
under this section for any fiscal year remaining unpaid to such State at the
end of such fiscal year shall be available for payment to such State under this
section until the end of the second succeeding fiscal year. No payment to a
State under this section shall be made out of its allotment for any fiscal year
until its allotment for the preceding fiscal year has been exhausted or has
ceased to be available.
(b) From the sums appropriated therefor and the allotments available under subsection (a) the Secretary of Labor shall from time to time certify to the Secretary of the Treasury the amounts to be paid to the States, and the Secretary of the Treasury shall, through the Division of Disbursement of the Treasury Department and prior to audit or settlement by the General Accounting Office, make payments of such amounts from such allotments at the time or times specified by the Secretary of Labor.
(b) From the sums appropriated therefor and the allotments available under subsection (a) the Secretary of Labor shall from time to time certify to the Secretary of the Treasury the amounts to be paid to the States, and the Secretary of the Treasury shall, through the Division of Disbursement of the Treasury Department and prior to audit or settlement by the General Accounting Office, make payments of such amounts from such allotments at the time or times specified by the Secretary of Labor.
PART
4- VOCATIONAL REHABILITATION
SEC.
531. (a) In order to enable the United States to cooperate with the States and
Hawaii in extending and strengthening their programs of vocational
rehabilitation of the physically disabled, and to continue to carry out the
provisions and purposes of the Act entitled An Act to provide for the promotion
of vocational rehabilitation of persons disabled in industry or otherwise and their
return to civil employment , approved June 2, 1920, as amended (U.S.C., title
29, ch. 4; U.S.C., Supp. VII title 29, secs. 31, 32, 34, 35, 37, 39, and 40),
there is hereby authorized to be appropriated for the fiscal years ending June
30, 1936, and June 30, 1937, the sum of $841,000 for each such fiscal year in
addition to the amount of the existing authorization, and for each fiscal year
thereafter the sum of $1,938,000. Of the sums appropriated pursuant to such
authorization for each fiscal year, $5,000 shall be apportioned to the
Territory of Hawaii and the remainder shall be apportioned among the several
States in the manner provided in such Act of June 2, 1920, as amended.
(b) For the administration of such Act of June 2, 1920, as amended, by the Federal agency authorized to administer it, there is hereby authorized to be appropriated for the fiscal years ending June 30, 1936, and June 30, 1937, the sum of $22,000 for each such fiscal year in addition to the amount of the existing authorization, and for each fiscal year thereafter the sum of $102,000.
(b) For the administration of such Act of June 2, 1920, as amended, by the Federal agency authorized to administer it, there is hereby authorized to be appropriated for the fiscal years ending June 30, 1936, and June 30, 1937, the sum of $22,000 for each such fiscal year in addition to the amount of the existing authorization, and for each fiscal year thereafter the sum of $102,000.
*
* *
One
can easily see the intent of the Social Security Act of 1935 by reading the
above excerpts. The United States
was in the middle of the Great Depression in 1935 and nothing about the Social
Security Act was even the least bit frivolous. Read: http://en.wikipedia.org/wiki/Great_Depression#United_States
Times
were desperate, and many U.S. citizens were suffering in financial ruin.
QUOTE: “The original Social Security Act provided only retirement
benefits, and only to the worker. The 1939 Amendments made a fundamental change
in the Social Security program. The Amendments added two new categories of
benefits: payments to the spouse and minor children of a retired worker
(so-called dependents benefits) and survivors benefits paid to the family in
the event of the premature death of a covered worker. This change transformed
Social Security from a retirement program for workers into a family-based
economic security program. (The 1939 Amendments also increased benefit amounts
and accelerated the start of monthly benefit payments to 1940.) The 1939
Amendments thus became a pivotal turning-point. Indeed, the 1939 law is
probably second in importance only to the original Act itself in shaping Social
Security in America.”
*
All of the above regarding Social Security is important
background for this: http://www.ssa.gov/OP_Home/ssact/title02/0216.htm#act-216-b
Read it and you will find that the Social Security laws
regarding survivor benefits (see: Sec. 216. [42
U.S.C. 416]) are written in the
language of traditional marriage, that is: heterosexual marriage — the marriage
defined by one man and one woman: a husband and wife and their children. Then what? If the federal courts rule that Oregon’s marriage laws
violate the U.S. Constitution, which is a ruling that traditional marriage
violates the U.S Constitution, it must therefore be true that the 1939
Amendments to the Social Security Act also violate the U.S. Constitution and
that those amendments — the dependent benefits and the survivor benefits — must
necessarily be invalidated and made null and void by the ruling. Again, the federal courts have no right
to legislate, so the 1939 Amendments would have to be discontinued until the
Congress legislated a replacement.
The consequence of all this is that every American who is now
receiving or who is eligible to eventually receive Social Security Survivor
Benefits has legal standing in the matter of same-sex marriage. Quite literally, Congress could choose
to eliminate Social Security Survivor Benefits as a consequence of same-sex
marriage being made legal, and that would be no small thing. If Congress has to rewrite the law,
which is exactly what would be necessary, there is no way to predict the outcome.
Again, which of the 1,138 marriage benefits at
stake cost taxpayers real money, either in lost tax revenues or in actual
payouts? Many marriage benefits
were created to support childrearing in one-income households, and most of
those benefits were enacted into law before marriage in America changed
following “the pill” being approved for contraceptive use in 1960, no-fault
divorce being adopted in California in 1969, and abortion being legalized by
the Roe v. Wade U.S. Supreme Court ruling in 1973. Significant marriage benefits resulted from the Revenue Act
of 1916 (introducing new estate taxes) and from the 1939 Amendments to the
Social Security Act of 1935 (introducing Social Security survivor benefits) and
were largely created to protect widows and children from poverty.
Demographics have changed significantly in the
United States during the past 75 years.
The following U.S. Facts tell part of the story.
Life expectancy: 1940 (M:60.8 F:65.2) vs. 2011
(M:76.3 F:81.1).
Undergraduates who were women: 1947 (30%) vs. 2010
(58%).
Birth rate per 1,000 population: 1940 (19.4) vs.
2009 (13.8).
Births per woman: 1955-59 (3.7) vs. 2011
(1.89).
Legal abortions: before 1973 (0) vs. since 1973 (56
million +/-).
Marriage rate per 1,000 unmarried women: 1950
(90.2) vs. 2012 (31.1).
Divorce rate per 1,000 population: 1940 (2.0) vs.
2008 (3.6).
In 1950, 65% of all American women over age 15 were
married and 12% of married women with children under age 6 worked outside the
home. In 1998, 64% of married
women with children under age 6 worked outside the home.
“Single parents have more than tripled as a
share of American households since 1960.” http://www.theatlantic.com/business/archive/2013/09/the-mysterious-and-alarming-rise-of-single-parenthood-in-america/279203/
“The number of children living in
single-parent homes has nearly doubled since 1960, according to data from the
2010 Census. … Today, one-third of American children – a total of 15 million –
are being raised without a father. Nearly five million more children live
without a mother.”
http://www.lifesitenews.com/news/the-number-of-children-living-in-single-parent-homes-has-nearly-doubled-in/
If same-sex marriage becomes law, single people
will soon file discrimination lawsuits using the same Equal Protection Clause
arguments now being used by same-sex marriage proponents, and the single people
will win those lawsuits. Worse
than that, inmates from every state and federal prison in the United States
will also soon file discrimination lawsuits using the same Equal Protection
Clause arguments now being used by same-sex marriage proponents, and the
inmates will win those lawsuits because the entirety of our nation’s prison
system is now based on the heterosexual marriage model. What will the courts do then? And what will we do when the courts
order the building of new prisons and the simultaneous retrofitting of all
existing prisons to accommodate the “equal
protection” of every inmate who wants to marry a cellmate according to
his/her own sexual preference? Certainly, if homosexuals can enjoy same-sex
marriage with a cellmate while incarcerated, the heterosexual prisoners should
have an equal opportunity.
Therefore, if it is now time to restructure
American society, we should consider the needs of all of our fellow citizens,
including the poor, the widows, the unfortunate, the lonely, and every child
now living or yet to be born — all those whose voices and plights are now being
ignored in the noise of the same-sex marriage debate.
The General Rule should be: If a benefit has no
cost to taxpayers, it should be given to everyone. Liberty should be an American birthright that is neither
enhanced nor diminished by a citizen’s marital or family status — the single
individual alone, even a child, deserves the same “equal protection” granted to all others.
In 2005, almost 770,000 same-sex couples were
living in the U.S. and 20% of those couples were raising children — that is:
almost 1.54 million homosexuals were in coupled relationships and 154,000 of
those relationships involved the parenting of children. In 2006, 12.9 million families in the
U.S. were headed by a single parent and 80% of those single parents were female
— that is: 10.32 million women were raising their children alone as single
mothers.
Any good and proper solution must: 1) give first
consideration to those in greatest need, 2) recognize that objective science
cannot be ignored, 3) solve related problems, 4) avoid unintended consequences,
and 5) benefit everyone while discriminating against no one.
The federal courts should not get trapped in an
“either/or” argument concerning same-sex marriage. I have proposed an amendment to the U.S. Constitution that
would solve all of the problems put forth by same-sex marriage proponents and
then some. Please consider my
solution in light of my above arguments. Thank you.
Proposed Amendment: Legal Identity of
Citizens in the Law
Section 1. A natural born citizen’s fundamental right to know his/her true biological identity shall supersede the right to privacy of all other citizens.
The government shall issue a birth certificate to every citizen born in the United States. The birth certificate shall note the date, time, and place of birth; shall identify both the biological father and the biological mother by full legal name and DNA profile; shall identify the newborn citizen by full legal name, genital and chromosomal sex, and DNA profile; and shall be variously filed in government records, including separately according to the Social Security Number of each biological parent. Only verified biological parents shall be named as parents on the birth certificate. The government shall reissue a birth certificate to a citizen upon request.
A citizen shall be entitled to know the whereabouts of his/her biological parents who are fellow citizens. The government shall help a citizen locate his/her living biological parents upon request.
In a conception, the biological father shall be the man who produces the sperm and the biological mother shall be the woman who produces the egg. It shall be a felony crime to withhold the name of a biological father or a biological mother, or to in any way aid and abet an anonymous sperm or egg donor in a conception that results in a live birth. A surrogate who has another woman’s egg implanted in her womb shall not be the biological mother when she gives birth to a newborn citizen.
If the biological parents are not married, the biological father shall have no right to compel the birth of his child, but shall have the right to parent his child if he chooses, even if the biological mother forfeits her parental rights.
A minor citizen shall have biological birthrights that cannot be removed, disinherited, disowned, disallowed, withdrawn, or in any way waived by adoption, abandonment, or any legal means, including the birthrights to Social Security survivor benefits and a biological child’s fair share to an estate and its privileges.
A minor citizen shall have the right to sue his/her biological parents for direct child support.
Section 2. Henceforth, the government shall not identify its citizens by religion, heritage, ethnicity, and/or race, except regarding the existing historical record. Henceforth, the government shall not question its citizens regarding religion, heritage, ethnicity, and/or race, except to ask Yes or No: Are you a citizen of the United States of America?
A citizen shall be known as an American.
Section 3. The government shall recognize three legal status categories that citizens can use to join with other citizens in beneficial ways: 1) legal co-equal, 2) marriage, and 3) family. Each category shall have its rights and privileges legislated by Congress.
An adult citizen shall have the right to designate one other adult citizen as his/her legal co-equal. Each adult citizen can designate only one legal co-equal, but any adult citizen might be the designated legal co-equal for many other adult citizens (example: three unmarried adult siblings might each designate their widowed mother as their legal co-equal, and the widowed mother might designate her married sister as her legal co-equal, and the married sister might designate her husband as her legal co-equal, and the married husband might designate his best friend living in another state as his legal co-equal, and so forth in any strange way). All adult citizens shall be encouraged to designate a legal co-equal.
Marriage shall legally join one man to one woman in an exclusive conjugal union that assumes regular sexual intercourse and the possibility of procreation. Marriage shall exist in the law as a biological distinction, because it is the only pairing of two adults that is capable of producing children without using other people.
Family shall legally acknowledge and benefit any grouping of two or more citizens in which at least one of the citizens is an adult. The term “family” shall be used as both a noun and a verb in the law.
The rights and privileges of the three legal status categories shall largely and significantly overlap in ways that are identical. However, Congress shall have the right to legislate distinctions that might benefit each category in different ways and might benefit any one category exclusively.
Section 1. A natural born citizen’s fundamental right to know his/her true biological identity shall supersede the right to privacy of all other citizens.
The government shall issue a birth certificate to every citizen born in the United States. The birth certificate shall note the date, time, and place of birth; shall identify both the biological father and the biological mother by full legal name and DNA profile; shall identify the newborn citizen by full legal name, genital and chromosomal sex, and DNA profile; and shall be variously filed in government records, including separately according to the Social Security Number of each biological parent. Only verified biological parents shall be named as parents on the birth certificate. The government shall reissue a birth certificate to a citizen upon request.
A citizen shall be entitled to know the whereabouts of his/her biological parents who are fellow citizens. The government shall help a citizen locate his/her living biological parents upon request.
In a conception, the biological father shall be the man who produces the sperm and the biological mother shall be the woman who produces the egg. It shall be a felony crime to withhold the name of a biological father or a biological mother, or to in any way aid and abet an anonymous sperm or egg donor in a conception that results in a live birth. A surrogate who has another woman’s egg implanted in her womb shall not be the biological mother when she gives birth to a newborn citizen.
If the biological parents are not married, the biological father shall have no right to compel the birth of his child, but shall have the right to parent his child if he chooses, even if the biological mother forfeits her parental rights.
A minor citizen shall have biological birthrights that cannot be removed, disinherited, disowned, disallowed, withdrawn, or in any way waived by adoption, abandonment, or any legal means, including the birthrights to Social Security survivor benefits and a biological child’s fair share to an estate and its privileges.
A minor citizen shall have the right to sue his/her biological parents for direct child support.
Section 2. Henceforth, the government shall not identify its citizens by religion, heritage, ethnicity, and/or race, except regarding the existing historical record. Henceforth, the government shall not question its citizens regarding religion, heritage, ethnicity, and/or race, except to ask Yes or No: Are you a citizen of the United States of America?
A citizen shall be known as an American.
Section 3. The government shall recognize three legal status categories that citizens can use to join with other citizens in beneficial ways: 1) legal co-equal, 2) marriage, and 3) family. Each category shall have its rights and privileges legislated by Congress.
An adult citizen shall have the right to designate one other adult citizen as his/her legal co-equal. Each adult citizen can designate only one legal co-equal, but any adult citizen might be the designated legal co-equal for many other adult citizens (example: three unmarried adult siblings might each designate their widowed mother as their legal co-equal, and the widowed mother might designate her married sister as her legal co-equal, and the married sister might designate her husband as her legal co-equal, and the married husband might designate his best friend living in another state as his legal co-equal, and so forth in any strange way). All adult citizens shall be encouraged to designate a legal co-equal.
Marriage shall legally join one man to one woman in an exclusive conjugal union that assumes regular sexual intercourse and the possibility of procreation. Marriage shall exist in the law as a biological distinction, because it is the only pairing of two adults that is capable of producing children without using other people.
Family shall legally acknowledge and benefit any grouping of two or more citizens in which at least one of the citizens is an adult. The term “family” shall be used as both a noun and a verb in the law.
The rights and privileges of the three legal status categories shall largely and significantly overlap in ways that are identical. However, Congress shall have the right to legislate distinctions that might benefit each category in different ways and might benefit any one category exclusively.
* * *
Steven A. Sylwester
POSTSCRIPT: James Madison, Jr. (March 16, 1751 —
June 28, 1836), the fourth President of the United States (1809-1817) who is
hailed as “the Father of the Constitution,” wrote something in “The Federalist
No. 43” (published January 23, 1788, in the Independent Journal) that is
obscure but is nonetheless at the heart of all of the above in an odd way. I put it here as an afterthought that
is intended to inform your ponderings like a gnat that will not go away.
James Madison wrote: 6. "To guarantee to every State in the Union a republican form of
government; to protect each of them against invasion; and on application of the
legislature, or of the executive (when the legislature cannot be convened),
against domestic violence." … A protection against invasion is due from
every society to the parts composing it. The latitude of the expression here
used seems to secure each State, not only against foreign hostility, but
against ambitious or vindictive enterprises of its more powerful neighbors. The
history, both of ancient and modern confederacies, proves that the weaker
members of the union ought not to be insensible to the policy of this article. http://www.constitution.org/fed/federa43.htm
As same-sex marriage proponents march across
America, state after state, the federal courts need to remember their
Constitutional obligation "To
guarantee to every State in the Union a republican form of government; to
protect each of them against invasion;" and to remember James Madison
himself defined that to include protection against
ambitious or vindictive enterprises of its more powerful neighbors.
Above, I included thirteen different excerpts from
the U.S. Constitution that I think are applicable to a court ruling on same-sex
marriage. Each of those excerpts
carries the same weight, in that no one of them is true unless all of them are
true; indeed, the truth of any one clause in the Constitution is found in the
whole Constitution or it is found nowhere at all.
Statistics Sources: http://www.ssa.gov/history/1939amends.html
