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VOL. 8, NO. 11Nov. 2, 2006
Constitutional Law 101, II — How to Protect Marriage
By Virginia Armstrong, Ph.D., National Chairman

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The protection of traditional marriage is the hottest proposition issue on state ballots in next week's elections. The fires of controversy have been fueled by the New Jersey Supreme Court, which ruled last week that the state legislature must, within 180 days, establish for same-sex couples a "statutory scheme that provides [them the] full rights and benefits" that accrue to traditional marriage. The Court left open the issue of whether to designate the scheme a "marriage." But "a rose by any other name" ???

The New Jersey Supremes followed the lead of the state Supreme Courts we discussed in an earlier "Court Watch Briefing" by considering whether New Jersey's failure to recognize same-sex unions violated the due process and equal protection provisions of the state constitution. The New Jersey High Court ultimately decided the case on equal protection grounds. In our earlier "Briefing" we discussed this issue. Today we discuss the due process issue because it has also been a major weapon used by homosexual rights activists in promoting their agenda and opposing state efforts to protect traditional marriage.

The phrase "due process of law" is used in both the Fifth and Fourteenth Amendments. Therefore, it was meant to apply to both national and state governments. But the core meaning of this guarantee has been altered so drastically that the guarantee bears little resemblance to its original meaning. And since federal judges have been the architects of this metamorphosis of "due process," they have thereby expanded their own power drastically.

"Due process" in English Common Law and in American law until the later Twentieth Century was a procedural guarantee — a provision focusing on the processes of the law. But it was a limited procedural guarantee. In its original Common Law form, it applied only to (1) technical processes (primarily the right of a defendant to be properly informed of the charges against him and afforded the opportunity to answer those charges) (2) employed by courts (3) in the actual trial stage of a controversy in (4) criminal law.

The guarantee has been fundamentally reconstructed in the last 75 years. Having been over-hauled by Reconstructionist judges, it is now applied (1) to all forms of legal processes (2) engaged in by all government agencies (3) in all stages of government action (4) in both criminal and civil law.

Additionally, and critically important, "due process" is now far more than a procedural guarantee. "Substantive due process" is a judicially-created doctrine of incalculable importance in Reconstructionists' efforts to jerk America off its Judeo-Christian foundations and moor it on a Humanistic foundation. "Substantive due process" requires that the content of laws, their very essence or heart, fall within "proper limits" (these limits being defined by Reconstructionist judges employing a Humanistic yardstick). If these judges decide that a law in its essential content exceeds government's power, the law is deemed violative of "substantive due process." For example, the U. S. Supreme Court declared in 1967 that no government had the power to prohibit interracial marriages (Loving v. Virginia) because of substantive due process — any such prohibition, however enacted or enforced, was, in its substance, outside government power.

Any law whose provisions exceed court-defined substantive due process may be thrown out. A large percentage of the landmark cases now decided by the courts rest at least partially on the substantive due process foundation, making this doctrine one of Humanism's most deadly weapons in the Culture War. Homosexual rights activists argue that when law prescribes or permits the disadvantageous treatment of homosexual relationships in comparison to heterosexual relationships, homosexuals' substantive due process rights are being violated. The same substantive due process argument is used to justify constitutional protections for abortion, regulation of orthodox religious activities, the exclusivist teaching of other official endorsement of evolutionism over creationism, and other Humanistic assaults on our Judeo-Christian Constitution.

We Constitutionalists must understand these fundamental facts if we are to protect marriage as well as other essential American institutions and values. As President James Madison, the Father of the Constitution said, "knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives."

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