This week the House Federal & State Affairs Committee, of which I am a member, will hold at least three days of hearings on SCR 1601, which would limit marriage to one man and one woman. I have received a large number of e-mails both in support of and in opposition to this proposed constitutional amendment. I very much appreciate the input of all of those who have taken the time to contact me.

Because of the importance of this issue and the interest it has generated I would like to take this opportunity to lay out a basic summary of my position. Before doing so it may be helpful to set forth the substantive language of the proposed amendment. SCR 1601 would amend article 15 of the Kansas Constitution, adding the following language:

Marriage. (a) The marriage contract is to be considered in law as a civil contract. Marriage shall be constituted by one man and one woman only. All other marriages are declared to be contrary to the public policy of this state and are void.
(b) No relationship, other than a marriage, shall be recognized by the state as entitling the parties to the rights or incidents of marriage.

I support this proposed language and intend to vote in favor of its passage in committee, on the floor of the House, and in the voting booth in April. To help explain why this is the case I will attempt to work from the broad (why I oppose homosexual marriage in general), to the specific (why I support SCR 1601 in particular).

Perhaps the most common argument raised, in one form or another, by proponents of homosexual marriage runs as follows. “How can it possibly be harmful, either to the institution of marriage in general, or to the marriages of particular heterosexuals, if two loving and committed homosexuals are married?” I’ve noticed from the manner in which this question is stated that those who raise it tend to think of it as something of a trump card, an argument unanswerable outside the narrow confines of bigotry. My own view is that to the extent there is some problem answering this question it has more to do with knowing where to begin than with any particular force in the question itself. It is as if one were to be asked, “How would it be harmful to the human body for it to be denied oxygen.” One may appear to struggle to answer at first, but only because the question contains a premise so contrary to our most basic understanding of the natural relationship between breathing and human life.

Likewise there is a necessary connection between marriage and the natural teleology of the body. A purpose plainly marked in the fact that humanity finds regenerative expression only in the union of male and female; the inescapable fact that only two people, not three or ten, and only a man and a woman, can beget children. It is this fact, plain as the air we breathe, that lies behind the institution of marriage as a blending of law and nature. If marriage is set adrift from this natural teleology then there is simply no principle upon which to restrict marriage among any conceivable combination of persons.

This is not to say that the advocates of homosexual marriage necessarily support the removal of all boundaries on the definition of marriage, though some clearly do. Instead it is simply to acknowledge that once we determine that marriage can not be denied to persons who claim an abiding love and commitment for one another, then we have lost the ability, in principle, to impose any limits at all on the definition of marriage. It is axiomatic that a definition so broad as to encompass everything in truth means nothing. It is for this reason, among other, that the recognition of homosexual marriage shatters the very meaning of marriage at its most basic level.

Perhaps another way of thinking about this may be helpful. No one doubts the reality of all sorts of loving and committed relationships existing outside the confines of marriage. Brothers love sisters, grandparents love grandchildren, Christians are called to love one another even unto death. None of these loves are diminished because they exist separate from the institution of marriage, but all of them are clearly recognized to be something other than a marital relationship. Marriage does not mark these relationships because marriage at its very core denotes something inherently foreign to them. Thus, even setting aside the moral questions associated with homosexual conduct, we can see that likewise homosexual relationships simply cannot by their very nature be marked by the imprimatur of marriage.

The idea expressed immediately above is part of the reason that part (b) of the proposed marriage amendment is so important. Absent this provision the door is left open for so called civil unions which frankly make even less sense than homosexual marriage. For the state to extend rights and incidents of marriage to homosexual couples, and not to say two elderly spinster sisters who have been living together for 50 years, is to make a fetish of homosexual copulation. Put another way, the same reasons we don’t grant rights and incidents of marriage to the two sisters would apply with at least as much force in the case of a homosexual couple. The mere fact that the one of the relationships involves sexual conduct is no basis for granting it special privileges while denying them to the other.

There are many other arguments involved in this debate that deserve consideration (including the pressing need for this amendment even given Kansas statutes defining marriage as a civil contract between those of the opposite sex), but for sake of time let me touch on just one more before moving to a brief consideration of SCR 1601 itself. The “teleology of the body” argument advanced above is clearly linked to issues of procreation and as such one often hears the view that it should apply with equal force to marriages between sterile heterosexuals. Here I will quote Hadley Arkes , because I simply can’t put it better than he already has:

But even people not covered over with college degrees have been able to grasp for years the natural correspondence that establishes the coherence in the design of marriage: There is a natural correspondence between the notion of marriage and the sexual coupling, the merging of bodies, in the “unitive significance” of marriage; and there is the plainest, natural connection between that act of coupling and the begetting of children. The children embody the “wedding” of the couples by combining in themselves the features of both parents. These meanings are so evident, these natural correspondences so fixed, that nothing in them is impaired if a couple happens to be incapable of begetting children. Their marital acts retain the same significance in the unitive scheme of marriage…

Now, whether people find this argument persuasive or not, it should be clear beyond caviling that the position of the gay activist depends critically on rejecting the notion that there is any “natural”, and fixed meaning behind sexuality, and that indeed the laws of marriage can be detached from Nature, or natural law altogether. In this construction – and the activists make no attempt to deny it – marriage does become a matter solely of convention and opinion, and therefore it can be given virtually any shape by positive law.

While I understand that the arguments put forth above will not change the minds of many who oppose the amendment, I do hope that at the very least they will dispense with the oft stated notion (at least in the e-mails I have received) that opposition to homosexual marriage is nothing more than the product of fundamentalist bigotry; the imposition of a narrow antiquated view held by a small segment of Christianity. And on that point I can’t resist just one more thought. If support for traditional marriage is really nothing more than a hobby horse of 20th/21st century fundamentalist Christians, then how does one explain the essentially universal adherence to such marriages across radically different cultures over millennia of human history. I would again suggest that the arguments noted above provide at least a starting point for answering that question.

Coming now to SCR 1601 itself I would like to respond to the notion being raised by some that part (b) might in some way limit private rights to contract involving health insurance, medical decision making, power’s of attorney, hospital visitation etc… Strain as I might I can find no merit in this argument. Part (b) of the amendment is patently clear, in restricting the state from recognizing “rights or incidents of marriage”, based upon non-marital relationships. Clearly, something can not be a right or incident of marriage if, under current law, it is available to both married and unmarried people. For example, under current law I can name my wife as a beneficiary in my will. I can also name someone in Mongolia who I have never even met if I want to. Obviously then being named in a will can not be a right or incident of marriage. That having been said the law also provides for a spouses elective share that, upon my death, goes to my wife as a matter of right, regardless of what other provisions I have made. Obviously this provision of law is a right or incident of marriage, it exists for my wife simply because she is my wife and cannot exist, via automatic operation of law, for any other.

The point of this example is that determining what is and what is not a right or incident of marriage is not particularly obscure or difficult. The ability of all kinds of people to freely contract in those areas where they currently are free to contract is not in any way threatened by this amendment.

Indeed, the fact that this amendment is limited in scope to governmental conduct is actually much clearer than it is in other provisions of the Kansas constitution. For example, no one questions that the right to free speech is not violated if an employer restricts an employee from say, making public comments encouraging potential customers from buying from a competitor. But the Kansas constitution merely says “all persons may freely speak, write or publish their sentiments on all subjects…” It does not specify that this is a protection only from governmental and not private infringement. The terms state or government are nowhere to be found in this provision of the constitution. On the other hand SCR 1601 is very explicit in stating that it is concerned with recognition by the state. Why the opponents of the amendment think courts will have trouble keeping this fact straight in an amendment that clearly sets it forth, when courts have no trouble keeping it straight in the context of an amendment that gives no guidance on the issue whatsoever, is a bit difficult to comprehend.

SCR 1601 furthers the legitimate purpose of protecting the institution of marriage while clearly avoiding any infringement of private rights to contract as currently constituted. Enshrining these principles constitutionally, rather than merely in statute, strengthens our ability to resist future judicial action requiring recognition of homosexual marriage. As such I support the amendment in its current form and hope to see it added to our constitution in the near future.

Lance Kinzer
State Representative
District 14
State House - Room 531-N
(785)298-7663