The nation is up in arms over the crisis caused by the supreme court of Massachusetts in finding a constitutional right to homosexual marriage that escaped the notice of the state's judges for 220 years, in a document older than the U.S. Constitution itself. By judicial fiat, a few judges recklessly overthrew centuries of law to suit their own whims in the face of massive popular resistance. So much for America teaching the world about rule of law and democracy as far as the court of the nation's second oldest commonwealth is concerned.

President George W. Bush has reacted to the storm of public protest by proposing a constitutional amendment to define marriage solely as the union between a man and a woman, one that would be binding on all of the states. Naturally, the left has opposed the plan but it has also received significant opposition on the right. Federalists such as former Congressman Bob Barr say marriage is a state matter and the Defense of Marriage Act protects other states from the spillover problem of one state's actions being forced upon another by the "full faith and credit" clause of the Constitution. Some social conservatives, such as the largest organization Concerned Women of America, reject Bush's amendment language because it does not prohibit civil unions between homosexuals to obtain rights similar to marriage. Other conservatives in Congress are concerned because they believe amendments should be restricted to procedural matters, not on substantive matters of policy. And, many conservatives are concerned the amendment process is too slow and that the politicians have focused upon an amendment as a way to do nothing.

The greatest problem with the president's solution is that it does not go to the root of the problem. As Mr. Barr notes in this edition, the underlying problem has been brewing since the 1960s--and that is judicial activism or, more properly, judicial legislating, contrary to Article I of the Constitution. As our contributor Robert Staker notes, the problem today is the courts and the solution must be aimed at them. However, his solution of a constitutional amendment does not solve the other problems raised by conservatives. If the wrong definition is put in the Constitution, how can it be changed? How does one deal with the federalism issue? And, because it needs two-thirds of each house of Congress and three-fourths of the states, are not its chances of passage slim or will take too long to be effective?

A quicker and more effective solution was published here a few issues back by Congressman John Hostettler. It would use Congress' Article I, Section 8 and Article III, Sections 1 and 2 powers to limit the jurisdiction of inferior federal courts and to set exceptions to the Supreme Court's appellate jurisdiction. His bill, H.R. 3313 (co-sponsored by congressmen Mike Pence, Nick Smith, Scott Garrett, Virgil Goode, Todd Aikin, Gil Gutknecht, Dave Weldon, Walter Jones, Roscoe Bartlett, Michael Forbes and Ron Paul), would remove federal court jurisdiction over the issue of marriage. This goes directly to the root problem and sends a shot across the bow of judicial activism everywhere. Massachusetts legislators could follow the same path if inspired by national leaders and solve their problem now, whereas even a state constitutional amendment would come too late to stop the courts from legalizing same sex marriages. And the bill only needs a majority in the House and 60 votes in the Senate to go into effect.

The problem with the Defense of Marriage Act is that its definition of marriage as a union only between a man and woman just applies to the granting of federal program benefits and merely allows states the right to refuse to recognize single sex unions of other states. What it does not protect against is a citizen of one state that allows single sex unions from going to a federal court in another state, where he relocates, to overrule the other state's law that refuses to recognize his union. A federal court could then apply the "full faith and credit" clause to force the states that do not recognize single sex unions to do so with no recourse for the state. H.R 3313 eliminates that possibility.

Some say a law, unlike an amendment, could be overruled at a later time. But an amendment could be voided and was in the case of the prohibition amendment. And, as the CWA reaction suggests, the wrong language or approach would also be that much more difficult to perfect. The other concern is that the courts, especially the Supreme Court, would declare the act unconstitutional and provoke a crisis. This is doubtful since Congress and the President (who must sign it, unlike an amendment) have so many resources to re-direct against the court, as the Founders intended, that the court would be foolish to practice such illegality. Any concerns that H.R. 3313 might create a precedent against the court would be offset by the possibility Congress would further restrict the court's jurisdiction in additional areas of policy in retribution.

H.R. 3313 would effectively restrain the courts and still leave the regulation of marriage to the states as the Founders intended. Moreover, it is difficult to see why the national government would do any better job than the states, all of whose legislatures have restricted marriage to one man and one woman. Massachusetts, with the support even of John Kerry, is in the process of passing an amendment to restore it. Thirty-seven states explicitly forbid same sex unions and refuse to recognize other state laws that do. It is true that our approach would not solve the most serious problem of marriage in the U.S. today, which is that divorce is rampant and children are being neglected in its wake, but neither would the others. Indeed, why should even the states be trusted supervising marriage given the poor record of all levels of government? It was the state level adoption of "no fault" laws that led to the explosion of divorce that plagues us today.

Other than fighting wars and keeping the peace--and often not even for these, government does few complex things well. Indeed, government control of marriage is relatively new as world history goes. For most times and in most places, marriage has been the province of religious authorities, as is still the case outside Europe and North America, where marriage is less stable. Civil marriages became popular in Europe only after the secular--even anti-religious--French Revolution. Marriage in Europe has been in decline almost ever since. Civil marriage takes morality out of marriage and makes it a commercial contract like any other, which means it may be legitimately broken anytime both parties agree. Only a religious contract can give marriage a sacred nature and bind the parties in a deeper, moral sense. Even civil marriage nations usually rely upon religious authorities to some degree.

Of course, many oppose religious contracts--some from principle, some not wishing to be additionally burdened. The genie is probably too far out of the bottle today to transfer full responsibility to religion, and many religions have adopted "no fault" as well. A dozen states even recognize "common law marriage," where no formal contract has been signed at all. But should there not at least be an alternative for those who prefer the traditional religious wedding, one that follows canonical rather than civil law, for individuals who want a more unbreakable relationship? A few states have adopted the "covenant marriage" legal contract that sets more stringent terms for a divorce that individuals contemplating marriage could choose over the no fault alternative. Choice might settle the matter of marriage and family rather well, as freedom usually does.

The most libertarian thinkers recognize that the state must set the broad rules of contract law, so that freedom can exist within them. All states could offer a covenant marriages that would subcontract the details to any religion, as long as it limited it to the union between one human man and one woman, made divorce more restrictive than the state's general laws and required the prior informed consent of the contracting couple. Until very recent time, the author's state of Maryland only recognized religious marriages. Even non-religious organizations or businesses--such as in Nevada--could provide a more restrictive divorce alternative. At the same time, the state would be forced to recognize other associational contracts of friendship to share financial and other matters, as they can today, and, undoubtedly, some homosexual ones would qualify. But this would not be a marriage, which could legally be restricted to a man and a woman, as Rabbi Aryah Spero notes nearby.

What would be the practical effect of a universal covenant marriage contract alternative? The author is willing to bet that the wise would recognize that the more restrictive religious covenant was the better deal. One suspects that most women deciding whether to marry would choose the more stable relationship for themselves and their future children and that the better men would follow them, as they usually do in such matters. The state cannot force people to remain married. In fact, its modern laws and policies have encouraged divorce. But a covenant marriage inspired by religious obligation just might be able to do the job, as it did until relatively recent times.

The state, especially, cannot create children if parents have no motivation to do so or lack courage to have them or raise them. Strict calculation makes it obvious that, unlike in agricultural times, children are an economic drag today. Sweden has devoted an incredible five percent of national wealth to pay families to have children--and France and Germany only a bit less--to offset this disincentive; but the population declines even further. Such welfare state and family policies and laws have not only not strengthened families, they have provided further incentives to live independently. All have been miserable failures. Without a moral and even religious sense to marriage, there cannot even be a people for the nation's future. Given its child bearing rates, Europe as we know it will cease to exist in a century or less. The U.S. can only buck that trend if it returns religious obligation to the marriage mix and sends a message to the aggressive secularist elites on the courts that, thank you, we the people will decide this matter on our own.

By Editor