Pat Boone
Monday, Sept. 12, 2005

Consistent with equal protection under the law, neither gays nor straights can get married to siblings, multiple partners, or individuals of their own sex. But this may change.

Here in California a 21-15 vote in our Senate and a 41-35 vote in our Assembly the first week of September made ours the first legislature in the country ever to authorize "gay marriage." Not all opposing votes were Republicans, but votes in favor were Democrats only. Gov. Schwarzenegger said he would veto.

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But if he were to change his mind and sign, it would change marriage the old fashioned way - by an act of the legislature instead of a decision by a court.

Without question, redefining marriage is law-giving of the first order. And our constitutional system places such power with the legislative branch, not with the courts. The California Code change reads like this at the State Assembly website:

"An unmarried male ... of the age of 18 years or older, and an unmarried female of the age of 18 years or older ... who are not otherwise disqualified, are capable of consenting to and consummating marriage."

Webster's Dictionary defines "consummate" relative to marriage as "to make complete by sexual intercourse," so to me applying this to same-sexed partners seems comparable to legislating the earth capable of completing each rotation in thirty hours.

Some of us are just old fashioned.

To redefine marriage - an institution older than church or state - is no incremental step. It is a radical one. Its foundational importance to civilization makes marriage at least as unwise an institution as the military for social experimentation. It's not about the individual's right to choose a personal lifestyle; it's about society's right to establish legal definitions.

To illustrate, you can call your weekend-training band of gun nuts a "militia" if you want, but don't say the government is denying your rights if it doesn't expand its definition of the militia and give you the corresponding benefits of funding or support like restricted highway lanes for your pickup truck convoys!

Likewise, call your same-gender mate your "spouse" if you wish, even have a "wedding" in an agreeable church under your First Amendment rights, and the two of you sleep together all your life, but don't say the government is denying your rights if it doesn't expand its definition of marriage and so give you the corresponding rights and standing of the legally married.

The government obviously can define what the military is or is not, and it had better, because the military is a fundamental structure providing for civilization to carry on. So is marriage.

Since government is in the high stakes business of protecting and providing and taxing and all the rest, government has an obvious requirement to define what marriage is and is not. Operating under statutory definitions is what government does. It routinely defines individuals according to both accidents of birth and choices of behavior.

Things like citizenship, age, tribal membership, gender, military veteran status, and tax brackets are examples of how the government's definition will result in different individuals being treated unequally in all sorts of ways.

A spokeswoman for Gov. Arnold Schwarzenegger said he "believes that the people spoke when they passed Proposition 22, and now it went to the courts and that's where it should be."

This from our courageous "Governator" may have illustrated why courts exercise lawmaking power so much greater than they ever used to: Sadly, dangerously, they provide elected officials an easy dodge from controversial leadership.

California's Proposition 22, passed by a margin of 61-39 percent, states that "only marriage between a man and a woman is valid or recognized in California."

Blithely redefining the irreducible atomic unit of civilization that is marriage, a few ham-handed judges across the USA have exhibited an embarrassing professional failure to exercise the time-honored principle of judicial restraint. They have usurped to themselves the powers of an elected legislature and chief executive.

What these few judges are bringing seems likely to be operationally a Constitutional crisis. In a context like this, a Constitutional amendment will not be an extreme remedy; it will be a necessary and appropriate one. It will moor us to the Preamble to our Constitution and, for that matter, to Roman Numeral One in our social contract. We the People are sovereign here, remember?

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