Liberty Defense League Timothy Baldwin Romans 13

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by Tim Baldwin

The Alabama Supreme Court Chief Justice, Roy Moore, has a reputation for standing firm on his beliefs—though some despise him for it. Years ago, he was removed by Alabama's executive branch from chief justice because he refused to remove the rather large Ten Commandments monument after a federal court ruled that it violated the “separation of church state." It was extremely controversial at the time. Ironically, in 2003, he ran for chief justice again and won. Now, Justice Moore is again defying a federal court ruling that struck down Alabama’s law that prevents the state from issues a marriage license to homosexual partners.

Is Moore’s position correct and which position will ultimately prevail in America?

Moore reasons that “[n]o federal judge, or court, should redefine marriage.” Moore believes that States have the power to define marriage (and issue licenses accordingly) and that defining marriage is purely a State power and issue. To enforce this position, Moore entered a decree that any state official who issues a marriage license to a homosexual couple will be criminally punished. Alabama’s Governor, however, stated he would not prosecute any such state official, so Moore’s decree is more bark than bite.

Judge Andrew Napolitano, a popular libertarian-type constitutional scholar, framed the issue in a recent radio talk show where he said,

If you view marriage as a privilege given by the States, then…the Feds have no say in regulating it and it’s up to the States. If you marriage as a fundamental choice of a mate by an individual then it is not to be interfered with by the State.

When one accepts that marriage is a private contract between adults and is not a privilege of the State, it becomes clear that Equal Protection protects the right of consenting adults to enter into a marriage contract. It should be clear: if a person has a right to life (which homosexuals do), she has rights naturally attached to her life: i.e. right of liberty, contract, and association.

On this note, Napolitano explains the two basic constitutional rationale that federal courts have used to strike State laws that forbid issuing marriage licenses to homosexuals: 1) an adult person with the capacity to enter into contracts with another adult person has a pre-political right to choose a marriage partner without the grant of a license by the government; and 2) under the Equal Protection guaranteed in the Fourteenth Amendment, USC, the State cannot treat similarly-situated people differently. Most federal courts use (2), but a Regan-appointed federal judge has used (1) to reach the same conclusion.

Napolitano notes that Moore (who must see that the federal Equal Protection guarantee undermines the legal basis of his decree) threatened to forbid all marriage licenses from issuing to any person, regardless of sexuality, so that Alabama would not be forced to issue marriage licenses to homosexual people. Such an effort to remove the State entirely from the marriage contract was proposed by an Oklahoma legislator with HB 1125 (2015). It appears this effort will increase as the federal courts confirm that States have no power under USC to forbid homosexuals from marrying each other.

I wrote previously on this issue in the Flathead Beacon, wherein I reason and conclude in support of these federal court decisions.

Start with first principles: (1) Marriage is a contract between two consenting adults; so, universal contract rights apply; and (2) civil law prohibiting homosexual marriage has nothing to do with protecting the family or procreation/child rearing. We know (2) is true because (a) if heterosexuality is natural, then laws are not needed to protect it; (b) laws making homosexuality non-criminal means it is not harmful to society; (c) people often marry without procreating; (d) the law does not require procreation; and (e) the law permits homosexuals to adopt children.

When government licenses marriage for ‘state purposes,’ it does so under Equal Protection limitations. This means it cannot prevent consenting adults from entering into marriage contracts when there is no compelling state interest. None exists, in part, for reasons stated in the above paragraph.

Too, government has no right to force churches to perform homosexual marriage ceremonies. Many religions see marriage as a religious act. The government cannot force them to contradict this religious tenet. As for tax and insurance benefits homosexuals will enjoy … good. We need fewer taxes, and all people should have good insurance.

One need not agree with homosexual marriage to support Equal Protection any more than one need agree with a person’s speech to support the First Amendment.

This issue should not be driven by party politics or religious views. We are supposed to be governed by the Constitution, not by popular opinions. Equal Protection is a powerful precept of liberty, much like Due Process serves to prevent government from oppressing the rights of the accused. We should encourage these constitutional protections. Indeed, I graciously accept whatever perceived “ills” Equal Protection allows knowing that if the government attempts to disparage a group to which I belong, the same law that protected those I with whom I may disagree will also protect me.

Now, people are realizing that government licensing schemes may not always be preferred to other human discourses based on common law principles of liberty, contract and association. But if one wants government to regulate human activity, he better be willing to accept the consequences of what this means constitutionally. Judge Roy Moore is well-intentioned, undoubtedly. But it is doubtful his view of marriage being a privilege granted by the States will prevail in America's future. People are growing tired of government intruding in their personal lives. I think this is a good sign for liberty.

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