Wednesday, April 23, 2014

U.S. District Judge Michael McShane: Read this re: same-sex marriage in Oregon

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:
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:
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.

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.

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.

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.

* * *
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: 
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:
Read it and you will find that the Social Security laws regarding survivor benefits (see: Sec216[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.”
 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.”                                                                    
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.

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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.
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.

Thursday, March 13, 2014

21st Century Lutheran Creed

I wrote the following with my congregation in mind.  It is my own faith statement within the context of a format provided by Dr. Bill Hoyt, a church consultant who has been guiding my congregation through a difficult time.  It is not intended to replace or subvert The Apostles’ Creed, The Nicene Creed, or The Athanasian Creed.  Indeed, I hold all three of those creeds in the highest esteem, and believe their words without reservation or qualification of any sort.  If anything, my 21st Century Lutheran Creed is simply another layer that might be common only to me, but it is true in every respect according to my own walk and talk with the Lord.   If it helps any reader in any way, then I wrote it for you; it was given to me to give to you, so be blessed as the Holy Spirit gives you blessing.  Go in peace.  Serve the Lord.
Steven A. Sylwester
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21st Century Lutheran Creed
As believers in God, we are each of us born alone as individuals: first, biologically into a human family, and then, second, spiritually through Holy Baptism into the Invisible Church that is God’s family that includes all fellow believers at all times past, present, and future.  Though each of us born biologically will someday die a physical death, none of us who are born again spiritually who continue to live in the Lord will ever die a spiritual death.  Instead, we will each of us join the company of saints and angels in Heaven who live with God in eternal life.
Now, during our earthly lifetime, we — all of us — must contend with sin, for the Bible tells us in Romans 3:23: all have sinned and fall short of the glory of God.”  We are sinners.  Each of us has eaten from the tree of the knowledge of good and evil that is in the midst of our own garden — our own life.  And so we sin: we miss the mark of perfection and we fall short of the glory of God.  The Bible tells us in Romans 6:23: “For the wages of sin is death, but the free gift of God is eternal life in Christ Jesus our Lord.”  
We are spiritual beings living in mortal physical bodies during our lifetime on Earth.  The greatest reality even now is the eternal spiritual reality.  The lesser reality is the temporary physical reality: our material world.  Because our earthly consciousness is often blind and deaf to the greater reality all around us and within us, we pray for the blessing of eyes to see and ears to hear the glory of the Presence of God.
We have been led by the Holy Spirit to become Christians, and our path is along the way of Jesus found by Martin Luther in Holy Scripture.  Luther described the path as: “Scripture Alone. Grace Alone. Faith Alone.”  The key passage is Ephesians 2:8-9: For by grace you have been saved through faith, and this is not your own doing; it is the gift of God— not the result of works, so that no one may boast.”  What then is salvation?  Jesus told us in John 3:16: “For God so loved the world that he gave his only Son, so that everyone who believes in him may not perish but may have eternal life.”  Then Jesus told us in John 14:6-7: “I am the way, and the truth, and the life. No one comes to the Father except through me. If you know me, you will know my Father also. From now on you do know him and have seen him.”  Jesus is God.
Though Heaven awaits all believers, all believers must first live a lifetime on Earth.  The “blasphemy” for which Jesus was crucified was that He forgave sins; He did something only God could do.  In dying on the cross and then resurrecting to life, Jesus won victory over death for all of us, and then He gave us — each of us, all of us — the power to forgive sins.  He completed His task, for if humans were to be like God in having the knowledge of good and evil, then they also must be like God in having the power to forgive sins.  But will we do it?  Do we do it?  Do we exercise the right to forgive sins that Jesus won for us through His death and resurrection?  In teaching His disciples to pray The Lord’s Prayer, Jesus taught us to pray in Luke 11:4: And forgive us our sins, for we ourselves forgive everyone indebted to us.”  And yet we sin, and our greatest sin is that we often do not and sometimes will not forgive others.  In the Sermon on the Mount, Jesus said in Matthew 5:48: Be perfect, therefore, as your heavenly Father is perfect.”  God help us. Amen
The Bible tells us in Ephesians 2:10: For we are what he has made us, created in Christ Jesus for good works, which God prepared beforehand to be our way of life.”  James, the brother of Jesus and the leader of the church in Jerusalem, wrote in James 2:17,26: So faith by itself, if it has no works, is dead. … For just as the body without the spirit is dead, so faith without works is also dead.”  That is the Lutheran “faith and works” conundrum, and it is best answered by Micah 6:8: He has told you, O mortal, what is good; and what does the Lord require of you but to do justice, and to love kindness, and to walk humbly with your God?”
We believe God is One: an Eternal Being of Light, Love, and Spirit who we know as Father (our Abba), Son (our Lord and Savior Jesus Christ), and Holy Spirit (our Advocate).  God is ever present and hears our prayers, even our groaning and the cries of our sorrows.  Therefore, we strive to be faithful and hopeful and trusting as we pray: “Thy will be done. Amen”
We believe God the Father is the One Eternal Light and the Creator of and Provider for life and all things seen and unseen — the very Source and very Essence of all that ever was, is, or will be.  Therefore, we strive to be humble, to always know ourselves as created beings, and to fear, love, and trust in God above all things.
We believe God became True Man in Jesus and that Jesus is the Light of the world, the Word, and the Christ: the promised Messiah prophesied in Holy Scripture.  Through Jesus came grace and truth, and also the new commandment to “love one another as I have loved you.”  Therefore, we strive to remember Jesus in all of our doings: to give the Gospel freely, to bless, and to forgive always, even our enemies; and to love each other in God’s Peace as our Christian witness to the world.   
We believe God the Holy Spirit is the Light of our souls and the gatherer of the faithful, who forms, guides, inspires, and enlightens the Church on Earth.  The Holy Spirit is always everywhere present, is the Voice and Power of God, and is alone the Presence of God who can make things holy in our world.  Therefore, we strive to be ever listening, ever watching, and ever open for the Holy Spirit to teach us, to show us, and to change us according to God’s will.
We believe the Bible is inspired by the Holy Spirit and is therefore the inerrant Word of God, that it tells a true story and the actual history of Immanuel (God is with us), and that it reveals what we need to know to know God and to speak of God to others.  Through the Bible’s teachings, the Holy Spirit instructs us in our faith and guides us in our doings within the Church and with the outside world.  The Bible is holy and is our Ark of the Covenant; it is where the Gospel is treasured and accessed.  Therefore, we strive to read, mark, learn and inwardly digest the teachings of the Bible through daily study, both by ourselves in personal meditations and with each other in group studies under the tutelage of pastors or blessed teachers, so that we might be better able and more confident to speak to others of our hope in Jesus.  
We believe the Church is the Family of God, the Body of Christ, and the Flame of the Holy Spirit in that it is the children of God revealing Jesus to the world through the gifts and the weapons of the Holy Spirit, in choruses sung out gloriously, in the precious quiet of solitary kindnesses, and in the courage of martyrs who would not deny the Lord, even unto death.  Everyone counts.  Everyone has something to offer.  Everyone is blessed to be a blessing.  Therefore, we strive to be courageous, to not shirk, to join together, and to reach out as we can as we walk humbly with God.
We believe worship is a duty, a pleasure, a joy, and a revelation: it is the stillness from which we can know God, an opportunity for giving thanks and praise, an opportunity for receiving blessings and forgiveness through Word and Sacraments, and the blessed moments created when two or three are gathered in the Name of Jesus when He makes His Presence known in our midst.  O that we would be worshiping always — praying without ceasing!  Therefore, we strive to live our lives as a liturgy to the Lord, to regularly gather together as a congregation in worship, and to come before the Lord with clean hearts and right spirits if we can, but too with broken and contrite spirits if we must, for the Lord will meet us as we are and then make us to be all that we can be to His glory.  Hallelujah!
We believe prayer is what ultimately separates belief from unbelief; it is the measure of faith, for no one who does not believe in angels and miracles — who does not see the Hand of God in human events and in their own life — can ever have that faith that will move mountains.  A life of prayer is a life lived asking, seeking, and knocking and also a life lived in silence and stillness and waiting on the Lord; it is a life lived swimming in the living waters in which the peace that passes all human understanding flows.  Therefore, we strive to pray, praise, and give thanks at all times in all places in all that we do in thought, word, and deed, so that our walk with God would be a talk with God and at long last we might learn to listen and thereby let the Light of God shine from within us uninterrupted.
What is Love?  What is this everything that is God, this everything that is to bind us and be our witness to the world, this everything that is the stuff of grace and truth? Love is spiritual energy that functions as the force of harmonious interactions in all things material and immaterial; it is the unifying principle of all temporal and eternal life; it is the essence of consciousness and the very substance of Heaven and Earth such that Holy Scripture tells us: “God is Love.” — Steven A. Sylwester  (words from a dream in the morning of October 28, 2012)  
 And so we will welcome strangers and angels to be among us with these words: Jesus Christ is Lord at Central Lutheran Church: a house of prayer and worship, and a place of Christian fellowship and learning.  We welcome all who want to join us as we serve our Lord with gladness.

If any congregation of believers must have a slogan beyond “Jesus Christ is Lord,” it should be the words spoken by Job: “I know that my Redeemer lives,” which are found at the heart of Job 19:23-27:
O that my words were written down! O that they were inscribed in a book!
O that with an iron pen and with lead they were engraved on a rock forever!
For I know that my Redeemer lives, and that at the last he will stand upon the earth;
and after my skin has been thus destroyed, then in my flesh I shall see God,
whom I shall see on my side, and my eyes shall behold, and not another.
My heart faints within me!

If any congregation of believers must have a Mission Statement, let it be Matthew 28:18-20: And Jesus came and said to them, “All authority in heaven and on earth has been given to me. Go therefore and make disciples of all nations, baptizing them in the name of the Father and of the Son and of the Holy Spirit, and teaching them to obey everything that I have commanded you. And remember, I am with you always, to the end of the age.” Amen
Yes, let it be a prayer, and let it end with “Amen.”  If we are ever to teach others to obey everything that Jesus has commanded us, we must start by being the first to obey those commands; we must set an example pure, and we must make it a prayer.

Amen.  Come, Lord Jesus!

Steven A. Sylwester