May 23rd 2015

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Articles from this issue:

COVER STORY No deal in federal budget for single-income families

CANBERRA OBSERVED Mixed budget: 'Battlers' put on the backburner

SOCIETY Marriage myths do not stand up to close scrutiny

INTERNATIONAL AFFAIRS Supreme Court argument goes to heart of marriage

POLITICS Understanding Orwell: the dangers of ideology

EDITORIAL Executive salaries: Telstra CEO bells the cat

ECONOMICS Productivity: do we understand it at all?

INTERNATIONAL AFFAIRS UK election: implications of Conservative victory

NATIONAL AFFAIRS Floating reasons to build our submarines here

CINEMA Best-laid plans oft end in corruption

INTERNATIONAL AFFAIRS New fronts in the fight against human trafficking

EDUCATION Non-government school tuition trumps SES status

CLIMATE CHANGE Bjorn again sceptics show face of intolerance

DRUGS Ice: an epidemic rages under our very noses

BOOK REVIEW The man who would not be prime minister

BOOK REVIEW The father of the green revolution

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Supreme Court argument goes to heart of marriage

by Patrick J. Byrne

News Weekly, May 23, 2015

The United States Supreme Court has been discussing the problems, concerns and harms with same-sex marriage.

The Supreme Court of

the United States

Its open discussions stand in stark contrast to rulings by lower courts that there is no rational basis for defining marriage as the union of a man and a woman only.

Whereas in Australia marriage is a federal issue, in the U.S. marriage is a state matter.

However, the U.S. Federal Supreme Court is now being forced to consider the issue, after many state referenda to define man-woman marriage. In some cases, these referenda were upheld by the courts, but in many cases they were overturned by activist judges who declared same-sex marriage to be a right.

Indeed, in 39 state referenda, 51.5 million (61 per cent) of Americans voted to support man-woman marriage, while 33.0 million (39 per cent) have voted for same-sex marriage.

Below is a summary of the key questions from and argument by the Supreme Court justices, as reported by Ryan T. Anderson from the Heritage foundation.

Justice Anthony Kennedy pointed out that the definition of marriage as the union of a man and a woman “has been with us for millennia. And it is very difficult for the Court to say, oh, well, we – we know better.”

Chief Justice John Roberts noted: “Every definition that I looked up, prior to about a dozen years ago, defined marriage as unity between a man and a woman as husband and wife.

“[So] you’re not seeking to join the institution, you’re seeking to change what the institution is.”

Justice Stephen Breyer said that man-woman marriage “has been the law everywhere for thousands of years among people who were not discriminating even against gay people, and suddenly you want nine people outside the ballot box to require states that don’t want to do it to change … what marriage is.”

Not anti-gay

Justice Samuel Alito pointed out that support for marriage as the union of a man and a woman could not simply be the result of anti-gay animus, because cultures like the ancient Greeks did not frown on homosexuality.

“So their limiting marriage to couples of the opposite sex was not based on prejudice against gay people, was it?”

Justice John Bursch said that “the marriage institution did not develop to deny dignity or to give second-class status to anyone.” Rather, “it developed to serve purposes that, by their nature, arise from biology.”

To that end, marriage is not about adults’ romance as such, but uniting mothers and fathers with each other and with their children.

Justice Bursch explained: “Imagine a world today where we had no marriage at all. Men and women would still be getting together and creating children, but they wouldn’t be attached to each other in any social institution.

“Now, the marriage view on the other side here is that marriage is all about love and commitment. And as a society, we can agree that that’s important, but the state doesn’t have any interest in that.

“If we’re trying to solve that social problem I just described, where there’s no marriage, we wouldn’t solve it by saying, well, let’s have people identify who they are emotionally committed to and recognise those relationships.”

Justice Bursch argued: “If you’re changing the meaning of marriage from one where it’s based on that biological bond to one where it’s based on emotional commitment, then adults could think, rightly, that this relationship is more about adults and not about the kids.

“[And] over decades, when laws change, when societal views on marriage change, there are consequences to that.

“There are 72 million children in this country [and if] this court ensconces in the constitution a new definition of marriage and it reduces the rate that opposite-sex couples stay together, bound to their children, because of that different understanding, even a 1 per cent change” would have dramatic impacts.

Justice Alito asked Solicitor General Donald Verrilli about the implications for religious liberty of declaring same-sex marriage a right. Specifically he asked whether a religious school that believed marriage was the union of husband and wife would lose their non-profit tax status. Verrilli answered: “It’s certainly going to be an issue. I don’t deny that ... ”

Justice Alto asked, if the definition of marriage could be changed today, what was to stop it being further changed in the future?

“If you redefine marriage to say it’s just about consenting adult love and caregiving, why not include the foursome?”

Justice Roberts noted that a court-imposed 50-state solution would not lead to civil peace but to anger and resentment. All the more so after Americans have voted overwhelmingly for man-woman marriage only in 39 state referenda.

At last, the courts are asking the right questions.

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