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.