Why Same-sex marriage is unconstitutional


The National Organization for Women’s long campaign for same-sex marriage is unconstitutional on its face.   Same-sex marriage has been the foremost long-term goal of the National Organization for Women (NOW) since January 1988 when feminist leader Sheila Cronin issued this mandate to feminists: “The simple fact is that every woman must be willing to be identified as a lesbian to be fully feminist.”  Her message was clear.  You do not have to be a lesbian, but you must support our transformative political marriage agenda or you are not a feminist.

Forget the adjectives “same sex” and “gay” as prepends to marriage.  These are victim-based marketing ploys invented by NOW to send us off into a heated debate about homosexuality and equal rights – distracting us from seeing their real goal of establishing “feminist marriage.”

Feminists made feminist marriage their top long-term goal twenty-five years ago and invested tremendous resources in it, because they intend to convert marriage into a feminist-controlled government enterprise and subordinate the rest of America to fund it.

Feminist marriage is structurally designed to destroy equality.  It establishes three classes of marriage, each with vastly different reproductive, social, and economic rights and protections under Constitutional law.

  1. Feminist marriage is a three-way contract between two women and government.  Most women will have children, and few women can afford or will go to the extreme of using artificial insemination to achieve pregnancy.  Government is the automatic third party collecting “child support” entitlements for children born in these marriages.

Children will be born of extramarital affairs backed by welfare guarantees and child support entitlements.   Feminist marriages are automatically entitled with many tax-free, governmental income sources for having children.

Feminist marriage is a marriage between any two women and the welfare state.  It constitutes a powerful feminist takeover of marriage by government, and places the NOW in the position of dictating government policy as a matter of “feminist Constitutional rights.”

Feminist marriage will be far more attractive to women than heterosexual marriage.  Sexual orientation does not matter when two women marry and become “married room-mates.”  They can still have as many boyfriends as they want and capture the richest ones for baby-daddies by “forgetting” to use their invisible forms of birth control.  On average, a feminist marriage will have at least four income sources, two of them tax-free, plus backup welfare entitlements.

Feminist marriage is government-sponsored serial polyandry, uniquely enriched by one or more substantial income sources not available to the other two planned subordinate classes of marriage.

  1. Heterosexual marriage:  Traditional marriages between men and women will continue, but be subrogated to feminist marriage and socio-economically  dis-incentivized.   Those in traditional marriages will pay taxes that will be used to support feminist marriages where child support or welfare cannot be recouped, as occurs in our existing welfare state.  Traditional marriages have only two income sources, neither of them entitled or tax-free.  Over time, many women will prefer “feminist marriage” because of the very substantial economic and sexual liberation advantages.  Heterosexual marriage will be heavily burdened by costly marriage penalties, and be comparatively unattractive to women.
  1. Male-Male marriages:  Marriages between two men are destined to be the “marital underclass.”  In most cases, these men will become unconsenting “fathers.”   Women in feminist marriages will not mention they are not using birth control.   Men in male-male marriages will be forced to pay child support to women in feminist marriages and become economically enslaved to these women.  The taxpayer will be forced to pay for child support some men cannot afford to pay, as occurs in our existing welfare state.

Male-male marriages cannot reproduce naturally (a primary factor in Constitutional case law).  They can acquire children only by artificial means, and at great expense, by adoption or renting a womb.  Most men in these marriages will still have regular sexual encounters with women.   Some men in these “marriages” will want to have children.  These men will have even more illegitimate children with women in (or contemplating) feminist marriages, most often without informed reproductive consent. Over time, reproductive fraud will become the norm in the United States.

The longitudinal impact of feminist marriage on reproductive and marital choices of unmarried individuals will be profound.   Women who are presently welfare beneficiaries will be propelled to marry each other, leaving unmarried men already sidelined by the welfare state machinery doubly disenfranchised.  Women who are not married can enter the welfare state by having a child out of wedlock, and then double their entitlements by marrying another woman on welfare.

I argue that the structure of feminist marriage, after a full review of its inseparable interlocking interaction with existing federal and state welfare law, is unconstitutional on its face.

The vast majority of women in feminist marriages will bear children out of wedlock, making government the automatic, statutory third party in such marriages with naturally conceived children.

Feminist marriage directly violates 14th Amendment protection against sex discrimination, and the 5th Amendment is violated at the Federal level.

Under the Constitution, the law cannot accept a structure of three-party marriage establishing an arrangement of government-sponsored economic polygamy as a protected, superior class of marriage under any rational-basis test.  Secondly, the law cannot accept any marital arrangement that establishes three classes of marriage, where the classes are crisply defined and either rewarded or discriminated against based on the natural reproductive capacity of one sex.

The issue of future harm is not central to the structural arguments, but is a supporting factor, because discrimination and harm are immediately created in every feminist marriage where women bear children “out of wedlock” and receive child support.

In Constitutional cases, “harm” is a substantial determining factor, establishing a claim of discrimination.   Existing case law has not yet tested the imminent harm that feminist marriage will unquestionably produce immediately in each case and cumulatively over time.

Assertions of future harm often place the claimant in the position of proving harm without having the future evidence to support the claim.  In this case, a tremendous body of data exists demonstrating the profound cumulative negative impacts of the welfare state on marriage.  Doubling the impact of welfare-state socioeconomic law and policy, in conjunction with the construct of feminist marriage, forces the court to acknowledge that doubling the harm already proven by existing social science is proof of substantial future longitudinal imminent harm.

  • Feminist marriage will fully eviscerate the close-scrutiny Constitutional meaning of equality based on sex.  Marriage will become a lawful, discriminatory institution based on one’s ability to naturally bear a child or not, with the welfare state playing a pivotal role in marital decisions.  Assertions of “gender equality,” that might have some value in employment situations, are oppositional in marriage litigation and are either subordinate or immaterial.
  • Hundreds of studies demonstrate the socioeconomic impact of the existing welfare state on the marital behavior of women and the  disaffection of men subjugated by the “plantation system.”   Doubling the welfare state will have far greater negative impact on heterosexual marriage because of very substantial economic and sexual-liberation “rights” that feminist marriage would establish.
  • The impact of feminist marriage on crime and social violence over time will be profound.  Hundreds of peer-reviewed studies demonstrate that men whose behavior is not tempered by heterosexual marriage are the most likely to end up uneducated criminals earning a living in the underground economy.    Men have no pressing reason to marry each other.  Few will marry, as demonstrated by same-sex demographics in Massachusetts, where at least two-thirds of same-sex marriages are between women.
  • When the welfare state was launched in 1963, the illegitimacy rate was 6% and the divorce rate was 1.4 per 1000. Today, the illegitimacy rate is 41% and the divorce rate is approximately 2.5 per 1000.  We have incontrovertible proof that the longitudinal impact of the welfare state (coupled with the feminist-inspired “divorce revolution”) has caused massive social and economic harm to the nation, the states, and their citizens.  Converting the illegitimacy metric into feminist marriage does not change the socioeconomic construct or ameliorate the known social consequences.  Feminist marriage will unquestionably drive very substantial increases in problematic social trends and taxpayer costs with which we are already besot.

I urge organizations opposing feminist marriage to fully research and litigate these points in every case and on every appeal, including “civil unions” which bear the same discriminatory design, absent religious meaning.  Opposing feminist marriage on moral and historical grounds does not directly counter the “equal rights” arguments asserted by proponents.   The Defense of Marriage Act (DOMA) is valuable in the short term, but will eventually be defeated by proponents of feminist marriage.  Feminists will chip away at DOMA using the same collection of splatter-gun arguments that fooled seven states into implementing feminist marriage.

Corporations supporting the repeal of DOMA are making a tragic mistake supporting feminist marriage.   Feminist marriage will demolish men’s drive to be successful, motivated workers.  It will also further weaken the American job market and harm women’s employment opportunities.  Our “Competitiveness Gap” with marriage-based Asian economies will expand as men’s productivity and educational attainment continues to decline, while increasing social problems, violence, and higher taxes stimulate businesses to remove jobs overseas.

The sham of feminist marriage is now fully exposed.  Now, let us litigate, relitigate, and legislate it out of existence.

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David R. Usher is President of the Center for Marriage Policy.