Amending an Inspired Constitution to Define Marriage

Today, my friend Gary Shapiro has written a guest editorial for The Iron Rod commenting on the Marriage Protection Amendment currently being discussed in the US Senate. He feels as I do that we should be strongly supportive of our living Prophet and the Twelve as they work with our national leaders to protect our traditional families.

Amending an Inspired Constitution to Define Marriage
by Gary Shapiro

During his 51 year ministry as an Apostle and Prophet, Ezra Taft Benson gave hundreds of talks about the U.S. Constitution. In fact, he said more about the Constitution than any other Church President. Some Latter-day Saints who felt a special loyalty to Ezra Taft Benson are frustrated by the current First Presideny's support of a Federal Marriage Amendment (for reasons outlined below).

I believe we cannot be loyal to the memory of Ezra Taft Benson without supporting the current First Presidency.

During the month of January, 2004, our family discussed the pros and cons of a Federal Marriage Amendment. Our discussion proceeded from the point of view that

"God-sanctioned marriage between a man and a woman has been the basis of civilization for thousands of years. There is no justification to redefine what marriage is. Such is not our right, and those who try will find themselves answerable to God." (Gordon B. Hinckley, Ensign, Nov. 1999, p. 54.)

We were in full agreement that something must be done "to safeguard traditional marriage from forces in our society which are attempting to redefine that sacred institution." (Ibid.)

Activist federal judges seem to be the major problem. They will probably impose same sex marriage on the entire country unless something is done to stop them.

The question was whether a federal marriage amendment would be the most desirable solution. Keep in mind, this discussion took place in January, 2004.

Original intent argues against a Federal Marriage Amendment

We all agreed that the Lord himself had "established the Constitution of [the United States], by the hands of wise men whom [He] raised up unto this very purpose." (D&C 101:80.) And there was no question that the founding fathers had intentionally placed marriage and family matters beyond the reach of the federal government.

A belief that the Lord himself established the Constitution implies loyalty to original intent, or in other words, the Constitution should be preserved in the tradition of the Founding Fathers. This view is supported by modern Prophets.

President George Albert Smith

"Said President George Albert Smith, ' I am saying to you that to me the Constitution of the United States of America is just as much from my Heavenly Father as the Ten Commandments. When that is my feeling I am not going to go very far away from the Constitution and I am going to try to keep it where the Lord started it….' " (As quoted by Ezra Taft Benson in "Jesus Christ — Gifts and Expectations," New Era, May 1975, p. 19; italics added.)

President David O. McKay

"…President McKay … encouraged us to support good and conscientious candidates who are truly dedicated to the Constitution in the tradition of our founding fathers. Ah … there it is … the Constitution in the tradition of our founding fathers. They are the ones the Lord referred to as wise men. (As quoted by Ezra Taft Benson in "Jesus Christ — Gifts and Expectations," New Era, May 1975, p. 19; italics added.)

President Ezra Taft Benson

"We must do as the Lord commanded us by revelation in 1833: ' Wherefore, honest men and wise men should be sought for diligently, and good men and wise men ye should observe to uphold; otherwise whatsoever is less than these cometh of evil ' (D&C 98:10). Men who are wise, good, and honest, who will uphold the Constitution of the United States in the tradition of the Founding Fathers, must be sought for diligently." (Ezra Taft Benson, "A Witness and a Warning," Ensign, Nov. 1979, p. 33; italics added.)

President Gordon B. Hinckley

At the Weber State University Commencement in 1999, President Gordon B. Hinckley asked God to bless this nation's leaders "that they may rise above pettiness and live after the tradition of the Founding Fathers." ("News of the Church," Ensign, Aug. 1999, p. 7; italics added.)

The First Presidency

"We honor our founding fathers [because] God raised up these patriotic partners to perform their mission, and he called them 'wise men.' (See D&C 101:80.) The First Presidency acknowledged that wisdom when they gave us the guideline a few years ago of supporting political candidates 'who are truly dedicated to the Constitution in the tradition of our Founding Fathers.' " (As quoted by Ezra Taft Benson in "Civic Standards for the Faithful Saints," Ensign, July 1972, pp. 59–60; italics added.)

Because the founding fathers intentionally placed marriage and family matters beyond the reach of the federal government, original intent argues against a Federal Marriage Amendment.

The Equal Rights Amendment as precedent argues against a Federal Marriage Amendment

The Equal Rights Amendment would have guaranteed equal rights under the law for Americans regardless of sex. It was approved by the House in October 1971 and by the Senate in March 1972. Although the amendment had gained the approval of 30 states during the first year after Senate approval, intense opposition effectively brought ratification to a standstill.

The LDS Church entered the fray in December of 1974 when Barbara B. Smith, Relief Society General President, told a group of University of Utah students that "the proposed Equal Rights Amendment is so broad that it is inadequate, inflexible and vague; so all-encompassing that it is nondefinitive." (Deseret News 1976 Church Almanac, p. A20.)

Five years later, the First Presidency had issued three major statements relating to the proposed amendment. The March 1980 issue of the Ensign included a 23-page insert entitled "The Church and the Proposed Equal Rights Amendment — A Moral Issue." In this insert, Church leaders vigorously opposed the Equal Rights Amendment and in the end, the E.R.A. was not ratified.

The Constitution's "division of powers"

Some of the reasoning used by the Church to oppose the E.R.A. seems to apply equally to a Federal Marriage Amendment.

For example, it was argued that the E.R.A "would result in a massive transfer of legislative power dealing with domestic relations from the states to the federal level [thus] disrupt[ing] the division of powers central to our constitutional system." (p. 13; italics added.)

Twelve years later, Elder Dallin H. Oaks listed "division of powers" as one of five "great fundamentals" that constitute the divine inspiration of the Constitution. "The U.S. Constitution," he reminds us, "limits the national government to the exercise of powers expressly granted to it." (Dallin H. Oaks, "The Divinely Inspired Constitution," Ensign, Feb. 1992, 72; italics added.)

Citing the tenth amendment, Elder Oaks points out that the "principle of limited national powers, with all residuary powers reserved to the people or to the state and local governments … is one of the great fundamentals of the U.S. Constitution." (Ibid.)

On this point, Elder Oaks concludes,

"The particular powers that are reserved to the states are part of the inspiration. For example, the power to make laws on personal relationships is reserved to the states. Thus, laws of marriage and family rights and duties are state laws. This would have been changed by the proposed Equal Rights Amendment (E.R.A.)…. The most fundamental legal and political objection to the proposed [amendment] was that it would effect a significant reallocation of law-making power from the states to the federal government." (Ibid.)

Limiting the powers of the federal government is one of the great fundamentals of the U.S. Constitution. Inviting the federal government into marriage and family matters has the opposite effect; it broadens the powers of the federal government, thus undermining one of the Constitution's great fundamentals.

Sadly, today the Constitution is whatever the judges say it is

During our discussion, our family agreed that marriage and family matters do not belong in the hands of the U.S. Supreme Court. The claim was made, however, that "amending the United States Constitution to define marriage [would] take the issue completely out of the hands of the Supreme Court."

The counter argument was that today's Supreme Court would not follow the intent of a Federal Marriage Amendment any more than it follows the original intent of any other part of the Constitution. The Supreme Court has become a law unto itself. And on this point, President Ezra Taft Benson was quoted:

"If those who so carefully drafted the checks and balances into our Constitution could have looked into the future and seen what the Supreme Court of the United States would do to their masterpiece, they would have been dismayed. Through the process of supposedly 'interpreting' the Constitution, the Court has twisted beyond recognition just about every conceivable clause to justify the transfer of all sovereignty from the states to the federal government, to broaden the powers of the federal government beyond any definable limit, and then to make it possible for all such powers to fall into the hands of the executive branch of government. We may still give lip service to the checks and balances of our constitutional republic, but the phrase is now quite hollow." (Teachings of Ezra Taft Benson, p. 613; italics added.)

In other words, marriage can be constitutionally defined as "the union of a man and a woman" and the U.S. Supreme Court can still say that it means same sex marriages must be allowed. Amending the Constution to define marriage cannot possibly place the issue beyond the reach of the Supreme Court — on the contrary, it would place the issue squarely into the Court's hands.

Limiting appellate jurisdiction

A solution to the major problem (activist federal judges who are trying to impose same sex marriage on the entire country) was earlier suggested by President Ezra Taft Benson:

"In order to avoid a concentration of power in any one branch, the Founding Fathers created a system of government that provided checks and balances. Congress could pass laws, but the president could check these laws with a veto. Congress, however, could override the veto and, by its means of initiative in taxation, could further restrain the executive department. The Supreme Court could nullify laws passed by the Congress and signed by the president, but Congress could limit the court's appellate jurisdiction. The president could appoint judges for their lifetime with the consent of the Senate." (Teachings of Ezra Taft Benson, p. 607; italics added.)

On the surface, this offers a viable alternative to amending the Constitution. All that is needed is to limit the jurisdiction of the Supreme Court to hear any issues relating to marriage. In fact, under Ex Parte McCardle, 7 Wall (74 U.S.) 506, 19 L.Ed. 264 (1869) and earlier cases, the Supreme Court itself indicated that this was the case. Subsequent to 1869, however, the Supreme Court has limited Congress' power to limit Supreme Court jurisdiction.

Quoting President Ezra Taft Benson a second time (for emphasis):

"The Court has twisted beyond recognition just about every conceivable clause to justify the transfer of all sovereignty from the states to the federal government, to broaden the powers of the federal government beyond any definable limit, and then to make it possible for all such powers to fall into the hands of the executive branch of government. We may still give lip service to the checks and balances of our constitutional republic, but the phrase is now quite hollow." (Teachings of Ezra Taft Benson, p. 613; italics added.)

As with all other facets of our government, the Supreme Court has now taken upon itself to govern and interpret the very provision which grants the Supreme Court its power. The Supreme Court has previously found attempts by Congress to limit its jurisdiction to be unconstitutional. While the merits of the Supreme Court's decisions are obviously open to debate, the undeniable fact remains that any attempt to limit the Supreme Court's jurisdiction would be exposed to the Supreme Court's own interpretation its constitutionality. Furthermore, given the trend in decisions issued by the Supreme Court, the chances that such an attempt would be successful are essentially zero.

The only safety we have

If the jurisdiction of activist judges cannot be limited except by Constitutional Amendment, must we then cede marriage and family matters to the federal government in an effort to preserve the institution of marriage?

In January, 2004, my answer was "No."

Today, my answer is "Yes."

Two First Presidency statements (July 7, 2004 and May 25, 2006) have influenced my current point of view. And, interestingly enough, it was President Ezra Taft Benson himself who consistently said we should follow the living Prophet in such matters:

"It is to [the founding fathers], the Lord, and his prophets that we should go to determine what the Constitution is [and should be]….

"To the Lord, his prophets, and the founding fathers we must go to learn of this divine document so our efforts will be to preserve and not destroy the Constitution." (Ezra Taft Benson, "Jesus Christ — Gifts and Expectations," New Era, May 1975, p. 19; italics added.)

"Some so-called experts of political science want the prophet to keep still on politics….

"How we respond to the words of a living prophet when he tells us what we need to know, but would rather not hear, is a test of our faithfulness.

"Said President Marion G. Romney, ' It is an easy thing to believe in the dead prophets, but it is a greater thing to believe in the living prophets.' " (Ezra Taft Benson, "First Presidency Message: Fourteen Fundamentals in Following the Prophet," Tambuli, June 1981, p. 4.)

In the April 1982 General Conference, President Ezra Taft Benson warned:

"Now the only safety we have as members of this church is to do exactly what the Lord said to the Church in that day when the Church was organized. We must learn to give heed to the words and commandments that the Lord shall give through his prophet, 'as he receiveth them, walking in all holiness before me; … as if from mine own mouth, in all patience and faith.' (D&C 21:4–5.) There will be some things that take patience and faith. You may not like what comes from the authority of the Church. … But if you listen to these things, as if from the mouth of the Lord himself, with patience and faith, the promise is that ' the gates of hell shall not prevail against you; yea, and the Lord God will disperse the powers of darkness from before you, and cause the heavens to shake for your good, and his name’s glory.' (D&C 21:6.)" (Harold B. Lee in Conference Report, Oct. 1970, p. 152; as quoted by President Ezra Taft Benson in Ensign, May 1982, p. 64.)

Latter-day Saints who are frustrated by the current First Presideny's support of a Federal Marriage Amendment should consider the advice of a Pharisee named Gamaliel who counseled moderation when criticizing the Apostles, "lest haply ye be found even to fight against God." (Acts 5:39.)

There is no safety except in following living prophets.

Technorati Tags: , , ,

10 Responses to Amending an Inspired Constitution to Define Marriage

  1. What if he is? So what? I don’t understand your question. What if your son was a child rapist or practiced bestiality. Same sort of thing. People who are out of control need to be restrained. If you don’t believe me, try walking stark naked through a modern mall and see what happens to you.

  2. A. W. says:

    what if your son or daughter is a homosexual?

  3. It makes a lot of sense to me. I like your wording better because it leaves open the possibility of a return to plural, celestial marriage if the Lord was to restore it in a moral climate that would not find it objectionable. On the other hand, why not push for both measures and see if we can get one of them passed into law? It would be big mistake, in my opinion, to discontinue our efforts to pass the MPA unless we were certain that the narrower amendment was going to in fact be proposed and receive the desired backing. Some years ago the national legislature went along with huge tax cuts to be offset by comensurate spending cuts. Well, surprise! The tax cuts when through, and the spending cuts did not. Who would have ever guessed? So if the Pro Family people discontinue their efforts to pass the MPA without some assurance that this narrower approach is going to be passed, what is to prevent the same thing from happening?

    I think we ought to try to do it both ways simultaneously and see if we can get one or both of them passed into the Constitution. What is wrong with that approach? Is there some reason why we must push only one or the other?

    With that said, I like your suggested Amendement better. I just don’t see any reason why the Pro Family people should stop their efforts in favor of the MPA when both measures could be promoted together. Heck, I don’t see why both measure could not be added to our Constitution. Passing two Amendments on the same issue could be a way to show how serious we think this is. Heaven only knows we have passed some really trivial, stupid amendments to the Constitution in the past. I’m thinking of most of the amendements after the first ten. We have repealed a bad Amendment before when we repealed Prohibition. Maybe we could solve this problem by repealing another one instead of adding an unnecessary Amendment to the mess we already have.

    I like the ring to it:

    “Nothing in this constitution or in the constitution of any state contains a right for a person to marry another person of his or her own sex.”

    Of course, if that were added to the Constitution, what would prevent agitators for social change from insisting that people be permitted to legally marry their pets, their parents, their siblings, their boss’s wife, and so forth?

    The problem really isn’t with the Constitution. It is with only two things as I see it: 1) The amount of power and influence we have granted to outrageously disgusting and wicked people in our society, and 2) Our own outrageously disgusting willingness to place the virtue of “tolerance” above many other necessarily superior virtues.

    When freedom becomes anarchy, we have gone too far in valuing freedom. And moral and social anarchy leads to every other kind of anarchy. In fact, I’m not sure that there is any other kind of anarchy. We live in a day when most people use the term freedom when they ought to be using the term anarchy. The word “freedom” did not always have the same connotations that it does today. Somebody has been corrupting our language.  It used to be widely understood that a people who will not exercise the self-control to rule themselves must necessarily be ruled by others.  Freedom without responsibility is an oxymoron.

  4. John says:

    I agree we need to something, and that the MPA is better than doing nothing. Ironically, however, supporting the MPA is the same thing as doing nothing. It is not politically viable, and it is never going to be.

    I was talking with a politically connected individual (a senate staffer) the other day who indicated that even the pro-family groups realize that the language of the MPA is not politically viable unless another triggering event occurs (i.e., a federal court strikes down DOMA or finds a constitutional right to same-sex marriage in the federal constitution.) He suggested that the pro-family groups would simply wait until such a triggering event occurs, and then attempt to stampede the MPA through the House and the Senate. Aside from being a rather Machiavellian political strategy, it is a strategy that will surely fail.

    The sophisticated advocates of same-sex marriage realize that the absolute worst thing that could happen for their cause would be for a federal court to strike down DOMA and/or find an equal protection right to same-sex marriage in the federal constitution. See The day a federal court imposes same-sex marriage nationwide (i.e., the day it looks like there will be enough public outrage to stampede the MPA through the House and the Senate) Professor Carpenter will draft an amendment similar to the one I’m suggesting and send it to Senator Reid, who will promptly sponsor the narrower amendment in the Senate. At that point, the only question will be whether enough Republicans support the narrower amendment so that a federal marriage amendment gets passed. If they continue to insist on defining marriage in the constitution, nothing will get passed. Either way, the Democrats will once again come out looking like principled federalists. The best of all worlds for Democratic Senators would be: (1) a judicial decision requiring nationwide recognition of same-sex marriage, (2) a narrow amendment proposed by Democratic Senators, which will allow them to save face as principled federalists, and (3) an intransigent “pro-family” caucus that continues to insist on defining marriage in the constitution so that nothing gets passed.

    Opponents of same-sex marriage need to realize that under no conceivable scenario will there be enough support to pass the MPA in its current form. The proponents of same-sex marriage will sponsor a narrower amendment before enough political pressure gathers to get the MPA amendment through.

    That is why I say that if you are really pro-family, and interested in protecting marriage, you’ll contact Senator and urge them to set aside the MPA in favor of a narrower marriage amendment that has a chance of passing. Once again, the narrower marriage amendment would say something like this:

    “Nothing in this constitution or in the constitution of any state contains a right for a person to marry another person of his or her own sex.”

  5. The point is, we’ve got to do something. And we have got to do it now. If the MPA isn’t ideal, it is better than nothing. And it is the only one being discussed. We can argue about the philosophy, political considerations, etc. forever. Meanwhile homosexual marriages are being legalized and the genuine definition of marriage is being forgotten in our culture. Sometimes we need to act instead of endlessly discuss. This whole topic has been discussed to death, and so far… no action.

  6. John says:

    Great post. A few comments:

    First, we should not oppose amending the Constitution solely on the basis of our belief that the Framers were inspired. Article V is just as inspired as the rest of the Constituion.

    Second, in amending the Constitution, however, we should try to think like the framers, i.e. largely in terms of process, not substance.

    Third, the First Presidency has endorsed a Federal Marriage Amendment, not the specific language of the Marriage Protection Amendment. We don’t have to support the MPA to follow the prophet. There are narrower versions of the Federal Marriage Amendment available. Here is one example:

    “Nothing in this Constitution or in the Constitution of any state creates a right for a person to marry another person of his or her own sex.” This narrower amendment prevents the judicial imposition of same-sex marriage without constitutionalizing the definition of marriage.

    Fourth, whatever one thinks of the MPA as a constitutional matter, it is not viable as a political matter. All it does is paint its opponents as principled federalists. A narrower amendment, like the one above, would not allow its political opponents to hide behind the rationale that the states should regulate marriage.

    Fifth, if you really care about protecting and preserving marriage, you’ll refuse to allow the MPA to be continuously voted on every two years as a republican campaign issue and support an amendment that is politically viable.

  7. ed says:

    Could we beat back the anti-family agenda, not through more government, but through preaching, teaching, expounding, exhorting? Gotta be nice though, we don’t want to lose that 501c status.

    Could we win the “culture war” by actively shunning – yes, repealing all the laws that prevent us from refusing to sell to others or hire them?

    Isn’t it the government that is preventing us from “winning”? Perhaps instead of more government we ought to abolish 9/10ths of the laws and regulations we have.

  8. pdoe says:

    A very deep post. Thank you for your clarity on this issue.

  9. You have got that right. This country is in deep trouble if it does not do a better job of using the law to protect and defend our traditional marriages. Most of our social problems are caused by children growing up in dysfunctional homes, and every measure successfully pushed through the legislature and the courts promoting the gay rights, abortionist and feminist agendas further exacerbates the problem. To survive as a culture, a nation, and even as a civilization, we have to find some way to get our families back to the state of health and vigor they enjoyed during 19th and early 20th century. The anti-family agenda of the homosexual lobby, the abortion lobby, and the feminist lobby in this country will make an end of everything we love about America if they are not successfully opposed. They are enemies of traditional morality, and they are therefore enemies of Jesus Christ. They are more afraid of the Religious Right than they are of establishing atheism as our state religion.

    Of course, by twisting the English language, they can promote the establishment of atheism as the state religion, something strictly forbidden in our Bill of Rights, by denying that it is a religion. The original intent of our Founding Fathers was never to promote atheism and unbelief using the power of government. But then these people care nothing about original intent anyway. To them the Constitution and the Bill of Rights are just so much toilet paper. If it were not so, they wouldn’t press for the measures they do when they have control of the legislature.

    Either we win this culture war, or the nation is lost and probably the rest of western civilization with it.

  10. Jonah the giant whale says:

    Great post. It brings sorrow to my heart to see the moral decay of this country. To know that my little girl is going to have to grow up in such a world breaks my heart. I don’t think the government should meddle in families, and I don’t think anyone else should either. But if something isn’t done, we will have nothing.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s