Legal Basis for Gay Marriage / Same Sex Marriage Licenses
There are several components to this discussion, such as the strictly legal issues, the moral and spiritual issues, and the practical issues. I’ll start with the legal issues of marriage and licenses.
Simply combining the words “marriage” and “license” together brings up legal questions. The two words have their own legal meanings separately, and there are a whole new set of issues when we combine them
WHAT IS LAW?
The law is a complex subject, and we can’t move on without defining it a little. First of all, statutory law enacted by a society and/or government does not determine right and wrong. There have always been thousands of unjust or evil laws, and there have always been absence of laws that should have been enacted. Laws can be enacted by those in power, to promote only their own interests, at the expense of everyone else. This happens all the time, anyone would admit. Secondly, it is very important to acknowledge that a good citizen is not a good one merely by submitting to all laws enacted. Indeed, a good citizen, in order to be good, has a moral duty to disobey and challenge laws that are immoral, or fraudulently enacted, or in America, to disobey and challenge laws that are unconstitutional. Otherwise it would be “government of the government, by the government, and for the government,” and not “government of the people, by the people, for the people.” There are various ways we the people in America can void bad laws, such as voting out bad legislators, suing in court to challenge a law, and most important of all, when we are on a jury, we are supposed to refuse to convict, if we believe a law that the defendant violated, is an unconstitutional law. The jury has the right and obligation to judge both the law and the fact. All the first supreme court justices said that, and the founding fathers spoke that way in their writings.
There are variations in different countries, but generally, laws promote the interests of the most powerful people in that particular society. In a democracy, theoretically that segment in power would be the majority of all the people. So in democracies, the law is in effect the will of the majority being imposed upon the minority.
Culture is a form of law. Even without laws enacted, the culture of a society brings pressure to bear on its people to do what is right in the view of the majority in that culture. And this is often totally unintelligent, this cultural aspect. People in a particular culture can often have their mind made up that a particular thing is absolutely right or wrong, and they cannot give a rational justification for their belief. It is merely a cultural belief that is not valid in other cultures.
RIGHTS and DUTIES
Law essentially delineates a set of RIGHTS and DUTIES for a society. The difference between a free society and a society that is not free, is how many rights and duties the government claims to be the originator of. An oppressive government claims to be the giver of rights and duties. In other words, in an oppressive society, ruled by a tyrant, the tyrant says, “You people can’t do anything without my permission.” Or in other words, “You people don’t have a right unless I say you have it.” An oppressive government essentially says you have no rights, only privileges. This is a government that denies the common rights of the people. It denies that human beings have certain inalienable rights universally, regardless of the government. It denies that there exist rights that don’t come from the human government. There are rights that people always have, regardless of who is in power. And on the flip side, that of duties, an oppressive government states that “You people have to obey every law I enact, without questioning those laws.” But in a free society, the people are free to question and challenge all laws. In other words, there are duties that human beings have, that do not come from the government. There are duties that people always have, regardless of who is in power or what form of government they have. There are duties that people have, even when a government specifically prohibits carrying out that duty.
This is why atheist societies are the most oppressive. When a society does not believe in God, then who would be the giver of rights other than the government? Or of duties? Since they believe there is no God, and the government is the sole determiner of law, there you can have the worst oppression possible. This is why more human beings have been denied their rights to life and liberty by atheist governments- Stalin, Hitler, Pol Pot, and other atheist communist governments. Hitler and the Nazis declared openly that their efforts to purge humanity of what they considered inferior races, were inspired by Darwinism and its corollary atheism. They were simply trying to help or speed up “natural selection.” And in America not long ago, the American government committed near genocide in trying to sterilize some peoples, in the name of “eugenics,” which again, is inspired by Darwinism. Darwinists when honest will admit that with accidental natural selection, unaided by a higher intelligence, there is no right and wrong, and no meaning to life.
America was founded by people who believed that “all men are endowed by their Creator with certain unalienable rights, among which are life, liberty, and the pursuit of happiness.” This phrase appears in the Declaration of Independence. In the Constitution for the United States, it is a little different, as follows: “life, liberty, and property.”
The constitutions for the various states in America say something like, “We the people of the state of _____, grateful to the Supreme Ruler of the Universe for all our liberties, do ordain this constitution.”
There is a term for the rights that I have spoken of, the rights that exist regardless of what government is in power. These rights are known as “common rights.” Marriage is one of them. Marriage has always been a common right, even in oppressive societies, such as feudal Europe, or the Roman empire, etc. People have usualy never had to ask permission to get married, unless they were slaves. Even some slaves got married when and to whom they pleased, at least without the government’s permission. When a person is NOT allowed to do a particular thing without the government’s PERMISSION, then that thing is called a PRIVILEGE.
Marriage is a common right. This means that people may freely get married without asking the government permission to do so. Marriage is not a privilege. This is because, as I have earlier shown, common rights are given by God. God created marriage, God instituted marriage; no human government instituted marriage
I have recently heard on the news some people stating that the Supreme Court of California “gave gays the right to marry.” Not so. It is impossible for a court to give anyone rights. The right either exists or it doesn’t. A court can recongnize and name a right that exists already, but it cannot give a right. If government gives such a thing, it is a called a PRIVILEGE, and it can take it away as well.
LEGAL DEFINITION OF A LICENSE
Black’s Law Dictionary, 6th edition, defines a license as follows:
“Permission from public authority to do something that would be illegal to do without the license.”
(By the same definition, you know that you do not need a license to do something that is not illegal.)
Now what makes something illegal? There are two forms of wrongness: malum prohibitum, and malum in se. Something that is malum prohibitum is deemed wrong because it has been prohibited by the laws of human beings in a particular society, for their particular society. Literally, it is “wrong because it is prohibited.” Something that is malum in se is wrong because it is “bad in itself.” Determining what is malum prohibitum is easy – you just find out what are the laws in the appropriate jurisdiction. Determining what is malum in se is also easy in my opinion – and in the opinion of the founding fathers of the United States of America. They said things like, “Men do not make laws; they but discover them. True laws originate from the Creator, the Supreme Legislator of the Universe.”
Marriage is not wrong in itself, so it is not malum in se. Neither is marriage prohibited, so marriage is also not malum prohibitum.
Therefore a human government cannot deny you the right to get married (neither permit it only upon the payment of a fee and the obtaining of a license) unless your marriage is malum in se, or malum prohibitum.
LEGAL DEFINITION OF MARRIAGE LICENSE
But wait a minute, why do marriage licenses exist in the United States then? Very simple: they were instituted for marriages that were deemed by society as wrong, either marriages that were malum in se, or marriages that were malum prohibitum, illegal, prohibited by law. In the history of America, the vast majority of people never got licenses to get married, because their marriages were never deemed illegal or considered wrong.
But up until the 1960’s there were some marriages, now commonplace and fairly normal, that were considered wrong: interracial marriages. Those were the marriages that required a license. (I am not against interracial marriage; I am only explaining the history of the marriage license.)
Even the most current edition of Black’s Law dictionary proves this. Black’s Law Dictionary, 6th Edition, defines marriage license as:
“A license or permission granted by public authority to persons who intend to intermarry”
Note that it does not say, “persons who intend to marry,” but “INTERmarry.” So you wouldn’t need a marriage license to marry, only to intermarry. Well, what is “intermarriage”? If you look up “intermarriage” in Black’s Law Dictionary 6th edition, it says,
Black’s Law Dictionary, 6th Edition, defines Miscegenation as:
Mixture of races. Term formerly applied to marriage between persons of different races. Statutes prohibiting marriage between persons of different races have been held to be invalid as contrary to equal protection clause of Constitution. Loving v. Virginia…
So now, you don’t even need a marriage license to INTER-marry.
Then why do people still get marriage licenses? Because their pastor, or their neighbor, or TV says you have to. The pastor, if he has a license to be a pastor from the state, and his church is a federal non-profit corporation, has a contractual obligation to act in the interests of the government, not in your interests or God’s interests. It is a conditionality of his license to do certain things and report certain things for the government. Often these obligations conflict with the family of God’s interests.
The state governments will try to tell you that a marriage license “legally solemnizes” your marriage. But in fact, it does not solemnize the marriage in the sense of making you dread to break it. Marriage is not enforced in America, neither by the governments or by the churches. What I mean is, people freely and easily divorce, for no Biblical reason. And nobody thinks anything of it or stops it, not even churches. So marriage is in practice, not held to be a solemn thing. I and my wife had a marriage license. Yet she left me, even though I had been sexually faithful to her, and I had never hit her or the children, etc. Her parents gave her money to move into a house, her church bought her gifts for her new house to help her, and I was not given a key or allowed to live in it with my wife and children. How is this marriage solemnized by a marriage license? (In fact, my wife’s church helped her divorce me, because according to the law of marriage, co-habitation is an essential element of marriage, and both parties are “entitled to the society of the other,” and when there is no co-habitation, there is a violation of the marriage contract, and the damaged party may sue at law those persons who would withhold the other from him…) Separation (non-mutually agreed separation) is divorce according to essential American law. Also according to the Bible. In the New Testament, the word for divorce is a word that literally means to “send away,” “dismiss.” So if a man and woman are not living together, a marriage license cannot make them married. Separation, when it is not mutually agreed to, is a breach of the marriage covenant.
If I had put up a fuss, my wife, as a woman, could have simply accused me of hitting her, and the police would have thrown me in jail without any evidence that I had in fact hit her. This happens all the time in America. I have seen it as recently as a few months ago. So what I am saying is that a marriage license doesn’t help you if you are a Christian man. Nobody will help you enforce your marriage just because you have a marriage license. But the government will most certainly lend the aid of their guns and muscle to help BREAK UP your marriage, and help you keep away from your wife, if that is what she wants. The government is no friend of true marriage, count on that.
A Christian makes a major mistake when he gets a marriage license from the state. Here is what the law says: “The state is a party to every marriage contract of its own residents as well as the guardians of their morals.”– Roberts v. Roberts (1947) 81 CA2d 871, 185 P2d 381. When you ask the state permission to get married, then Christ is not the head of your household, but instead the state is “guardian of your morals.” Do you really think this is what Christ wants you to do?
LEGAL BASIS FOR GAY MARRIAGE LICENSES
What would be the legal basis for gay marriage licenses? Well, as I have shown, there is more legal basis for a gay marriage license than there is for a heterosexual marriage license, because a license is necessary only to do something that is illegal. And gay marriage is illegal in the eyes of God, it is malum in se. There is not a common right to be homosexual. Because common rights come from God, and God specifically prohibits homosexuality. Homosexual marriage also is not considered true marriage in the eyes of the majority of society. Historically, gay marriage has always been considered wrong, malum in se, in American society. So obviously wrong, that American society did not deem it necessary to have a statute forbidding it. But, if the majority so desires, a democratic society can decide if it wants to permit and “solemnize” gay marriages. But as I have previously pointed out, a marriage license serves not to solemnize marriages, but it does serve as a source of revenue, and control. So if marriage licenses for gays gave society more legal control of them, that might be a good thing.
But, I fear that a marriage license would help gay couple adopt children. And that is a bad thing for society. Why? Because, for example, a boy raised by two men, where is his example or role model of how to relate to a woman? And in the same way, a child raised by two women, how is that child shown how a man and woman relate to each other? But, homosexuals DON’T WANT children to have proper role models, therefore homosexuals are enemies of society. And homosexuals are certainly enemies of free speech. I’m sure I will get hate mail.
The function of the federal constitution is to delineate the powers of the federal government. In other words, its sole purpose is to limit and control the federal government. It does not, for example, command us the individual citizen to do anything, or not to do something. The federal constitution is a contract between the states and the federal government. The American people formed the states. Then the states formed the federal government.
Neither does the federal constitution have the function of delineating the powers of a state government. The only reason it might state the powers of a state government, is when it is saying that only the federal government has a certain power, and therefore states do not have it. For example, the constitution says that only the federal government has the power to coin money, and regulate the value thereof, so then it is appropriate for the federal constitution to say that “no state shall allow anything but gold and silver coin to be legal tender…”
As a rule, marriage is a local jurisdiction issue. It is not a federal issue. Laws pertaining to our everyday lives are supposed to be state and local laws. The Tenth Amendment to the federal constitution says:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
Therefore, since the people and the states did not delegate to the federal government the power to regulate marriages, the federal constitution is not an appropriate place to have something about marriage.
A marriage license does not make a true marriage legal; true marriage has always been legal.
A marriage license cannot make something that is malum in se, not malum in se.
A marriage license will never make a “union” between two people of the same sex, into a true marriage.
The requirement of a marriage license will not stop homosexuals from living together and engaging in homosexual acts without one.
A marriage license WILL give them a legal disability, and a curse, just as it does to straight couples. (The “partnership” entity in law is one fraught with perils and vulnerabilities.)
Marriage licenses might make it easier for homosexual couples to legally adopt children, so I am against gay marriage licenses mainly for this reason.
A society that allows homosexual couples to adopt and raise children, will be offending the Creator very much. And it WILL be destroyed by God, I promise you that. But the wrath of God is already building up against America for how it violates and helps break up the true marriages of God’s children.
A Christian obtaining a marriage license is violating Jesus’ command to render unto Caesar the things that are Caesar’s and unto God the things that are God’s. Marriage is God’s, not Caesar’s. So if you render unto Caesar the things that are God’s, you are disobeying Jesus. If you ask Caesar for a license to marry, you are rendering to Caesar something that is God’s purview.
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