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The Jeff Cumberbatch Column – It’s all about love…

Jeff Cumberbatch - Columnist, Barbados Advocate

Jeff Cumberbatch – Columnist, Barbados Advocate

BU shares the Jeff Cumberbatch Barbados Advocate column  – Senior Lecturer in law at the University of the West Indies since 1983, a Columnist with the Barbados Advocate since 2000 and BU commenter – see full bio.

Musings: It’s all about love… 7/12/2015

[…]

“A new commandment I give unto you. That ye love one another; as I have loved you, that ye also love one another…” – John 13:34

As the on-going employment rights dispute between the Barbados Industrial Development Corporation [BIDC] and the National Union of Public Workers [NUPW] rapidly descends into farce, what with the dismissing employer now reportedly seeking what I suppose to be a declaration from the local courts as to its entitlement in the matter, and the Minister responsible for Labour castigating the NUPW but, remarkably, not the BIDC, for failing to revert to the status quo ante once attempts at political mediation have commenced, I consider that it may be an appropriate time for this column to step away from the fray and to leave resolution of the matter up to the workings of a social system that seeks to reduce even complex legal issues to primitive partisan political sentiment. I should state that I have heard or read nothing further on the issue so far to alter the view I offered two Sundays ago in the essay “Labour is not a commodity”.

Last Sunday also marked the expiry of proverbial nine days for the wonder of the decision of the Supreme Court of the United States that a marriage between members of the same sex was lawful in the several jurisdictions to have fretted its fitful “hour” upon the public stage. It should be recalled that this 5-4-majority ruling was a consequence of the court’s treatment of the Fourteenth Amendment to the US Constitution that enjoins the states from depriving “any person of life, liberty or property without due process of law” or denying “to any person within its jurisdiction equal protection of the law”.

Of course, this decision did not comport with the views of those who, for one reason or another, regard such a holding as nothing short of a sinful abomination. Hence, a decision that heralded a further evolution in what might be considered a human right, as some of those that preceded it, was subjected to the postulation of nightmare scenarios of the probable legalisation of paedophilia, polygamy, polyandry and even bestiality as a consequence of the judgment. This reaction is scarcely novel.

Similar sentiments might have been expressed by some elsewhere when it was decided in Brown v Topeka Board of Education that separate educational facilities based on race are inherently unequal; after Roe v Wade that limited the right of the state to regulate abortions; and at the ruling in the far less celebrated Torcaso v Watkins that the states and the Federal Government were not allowed to require any religious test for holding public office. That our local law is identical in these three respects might surprise more a few.

And for those who would call down the wrath of God on the US for this ruling, they must at the same time do so for the people of Ireland, Norway, South Africa, Sweden and Uruguay, to name a few, all jurisdictions where this form of marriage is lawful.

In my view, much of the angst is owed to a perception that the ruling serves only to adulterate the sanctity of traditional marriage although, as has been pointedly remarked elsewhere, this might better be preserved locally by prohibiting divorce and criminalizing adultery, phenomena that pose far more deleterious threats to that institution than the unlikely prospect of same-sex marriage between two strangers perhaps ever could.

As I suggested last week, marriage in these parts has always enjoyed a unique existence, one not necessarily consonant with Biblical teachings or of those latter-day apostles who purport to speak for God. From earliest times, it seemed to be viewed among the hoi polloi as an unnecessary and unarguably restrictive indulgence. Much more in vogue then was the visiting relationship that gave rise to the notorious phenomenon of the mother who “fathered” her children. One presumed advance on this was the “live-wid” relationship where the father came home at night although the parties never enjoyed the “benefit of clergy” …or of laity for that matter.

Eventually, these arrangements and their thitherto wrongly so-called, illegitimate, offspring were given legal sanction with very few dissenting voices, if any, at what was, in effect, substantially connived-at fornication. However, my earlier thesis that there are two Barbadoses, the imagined puritan and the actual hedonist, when it comes to traditional standards, especially those pertaining to sexuality, would be further justified in this regard and would have served to sanitise any perception of moral obloquy.

The truth is that the recent ruling is not the first time that the SCOTUS has had to treat with Biblical dogma and the institution of marriage. In the improbably titled Loving v Virginia in 1967, the Court was forced to contend with a lower court opinion that “Almighty God created the races, white, black, yellow, malay and red. And he placed them on separate continents. And, but for the interference with [H]is arrangement, there would be no cause for such marriage. The fact that he separated the races shows that [H]e did not intend for the races to mix…”

As a result of this assumedly self-evident proposition , Mildred Loving, a black woman, and Richard Loving, a white man, who had been validly married nine years previously in the District of Columbia, were convicted of the charge of violating the marriage laws of Virginia that provided “if any white person intermarry with a colored person or any colored person intermarry with a white person, he shall be guilty of a felony and shall be punishable by confinement in the penitentiary for not less(sic) than one nor more than five years”.

In a brief unanimous judgment that would repay reading, the SCOTUS opined that restricting the freedom to marry because of racial classifications violated the central meaning of the Equal Protection Clause under the Fourteenth Amendment. And the Court gave short shrift to the argument, as it had done earlier in Brown v Topeka Board of Education, that equal application of the statute to blacks and whites was enough to remove the classifications from the Amendment’s proscription of all invidious racial discriminations.

There are obvious differences between the Loving case and the recent ruling on same sex marriage. For one, the selected Biblical passage prayed (no pun) in aid in the latter case, that “man should not lie with man as with a woman” is textual rather than ascribed as with the patently inaccurate thesis on separation of the races. For another, the Lovings were capable of procreation unlike a same-sex couple. Yet both of these considerations; the former because of its lack of bindingness in a secular constitutional polity as opposed to in a theocracy, the latter because of its treatment of what is merely one incident of the marital relationship as the sole key to the essential validity of that union, are inadequate to nullify the arguments of the US Supreme Court.

The truth is that marriage is not merely a religious institution, but is also a civil contractual arrangement that confers and imposes certain express and implied rights and obligations that are legally enforceable on either party. Indeed, even these incidents themselves, as many other precepts, have undergone fundamental change over the years in keeping with the evolution of the human perception of justice.

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80 Comments on “The Jeff Cumberbatch Column – It’s all about love…”

  1. Zoe July 15, 2015 at 10:00 AM #

    Marriage as a Covenant.

    The very first description of the nature of marriage in the Bible, as consisting of leaving, cleaving and becoming one flesh (Gen 2:24), reveals the Biblical understanding of marriage as a covenant relationship. This meaning of marriage as a covenant of companionship is expressed more explicitly later in Scripture in such passages as Malachi 2:14: “The Lord was witness to the covenant between you and the wife of your youth, to whom you have been faithless, though she is your companion and your wife by covenant.”1 Being a sacred covenant, human marriage serves in the Old and New Testaments as the prism through which God reveals His covenant relationship with His people and Christ with His church.

    To appreciate the Biblical view of marriage as a sacred covenant, it is helpful to distinguish between a contract and a covenant. Paul E. Palmer offers a helpful clarification of the difference between the two: “Contracts engage the services of people; covenants engage persons. Contracts are made for a stipulated period of time; covenants are forever. Contracts can be broken, with material loss to the contracting parties; covenants cannot be broken, but if violated, they result in personal loss and broken hearts. . . . Contracts are witnessed by people with the state as guarantor; covenants are witnessed by God with God as guarantor.”2 In light of this understanding of a covenant as a permanent commitment, witnessed and guaranteed by God, let us examine the three components of the marriage covenant mentioned in Genesis 2:24: leaving, cleaving, and becoming one flesh.www.biblicalperspective.com

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  2. Simple Simon July 15, 2015 at 11:45 PM #

    @Zoe July 15, 2015 at 10:00 AM “The very first description of the nature of marriage in the Bible, as consisting of leaving, cleaving and becoming one flesh (Gen 2:24)”

    The one flesh spoken of in Genesis 2:24 is not the matrimonial union.

    That is a serious mis-understanding of the Hebrew Scripture.

    The one flesh is the child that is born from the sexual union between a man and a woman. The child is the LITERAL one flesh of that union.

    Like

  3. Zoe July 16, 2015 at 10:06 AM #

    AMERICA ‘PUNKED’ ON ‘GAY MARRIAGE’
    Supreme Court had to ignore its own words to reach conclusion
    Published: 12 hours ago

    image: http://www.wnd.com/wp-content/plugins/wp-print/images/print.png

    SUPREME COURT

    A well-known pastor says America was “punked” on homosexual “marriage,” and he is trying to rally resistance to the Supreme Court with what he believes is a “smoking gun.”

    Carl Gallups, author of “Final Warning: Understanding the Trumpet Days of Revelation,” argues the Supreme Court ruled only two years ago the right to define marriage belonged exclusively to the states.

    Then suddenly this year the justices found that contention was wrong – that the states did not have that right. Instead, the justices ruled 5-4 that the federal government has the right to redefine marriage – even to the point of throwing out the votes of millions of Americans.

    Gallups says this “nefarious” legal reasoning opens the door for legislative action by the Republican-controlled Congress.

    He said it was the case of United States v. Windsor in 2013 that overturned the Defense of Marriage Act.

    There the issue was that the federal law provided that marriage was between a man and a woman, but in New York state, there was a demand to include same-sex duos in that designation. Thus, the Supreme Court threw out the federal law.

    It found “the responsibility of the states for the regulation of domestic relations is an important indicator of the substantial societal impact the state’s classifications have in the daily lives and customs of its people.”

    But now, Gallups notes, the Supreme Court is saying in 2015′s Obergefell v. Hodges case that homosexuals have an inherent “right” to marry and the state does not have the right to determine “domestic relations.”

    Gallups says he finds it odd these same justices apparently didn’t notice this only two years ago.

    Gallups, a former law enforcement officer, told WND, “The U.S. v. Windsor case is evidence to many who are examining the redefinition of marriage in America that there is a potentially nefarious agenda afoot with this entire issue. How can it be that the same five justices, who ruled against DOMA on the basis that the definition of ‘domestic relations’ belonged to the states alone, could just two years later could completely reverse their stance and with the gay marriage ruling declare that the definition of marriage was entirely a federal matter? In a sane world – it cannot be.

    “These five justices declared in the DOMA ruling that to take the definition of marriage out of the states’ hands would be a ‘federal intrusion on state power’ and that it would be, ‘a violation of the Constitution because it disrupts the federal balance.’”

    He said, “The matter is clear. The SCOTUS gay marriage ruling, in the words of SCOTUS itself, was unconstitutional and therefore – illegal.”

    Some legal experts agree the Supreme Court is directly contradicting its reasoning from the relatively recent time frame of only two years ago.

    Douglas Wardlow, legal counsel with the Alliance Defending Freedom, told WND the court’s recent imposition of “gay marriage” is “fundamentally lawless, not based on sound reasoning and isn’t good jurisprudence.”

    Wardlow, who possesses a J.D. from Georgetown University Law Center and was admitted to the U.S. Supreme Court as well as the bar of the District of Columbia and Minnesota, argues the court was motivated by “the end they wanted to reach and not by sound reasoning.”

    He observes, “The reasoning in the Obergefell decision says the court can determine new standards of liberty to overturn precedent and legal restrictions.”

    The court’s decision, authored by Justice Anthony Kennedy, boasts, “Indeed, changed understandings of marriage are characteristic of a nation where new dimensions of freedom become apparent to new generations, often through perspectives that begin in pleas or protests and then are considered in the political sphere and the judicial process.”

    Wardlow argues Obergefell was grounded in the supposed constitutional right to express one’s identity and be granted a sense of dignity.

    “Apparently, the court is the body that can define what forms of identity are protected by Constitution,” he said.

    But Wardlow warns the decision goes beyond even just redefining a core institution like marriage. Observing how easily the court was able to contradict its own reasoning in the two years from United States v. Windsor to Obergefell v. Hodges, Wardlow says the court has done nothing less than redefine liberty itself and undermine the rule of law.

    “Liberty is now defined as the expression of identity, instead of liberty meaning freedom from forms of government control. Fundamental liberties are no longer defined by history or the traditions of the nation but are free floating concepts, concepts that the court can assess for itself,” he said.

    Wardlow says such an approach to jurisprudence could prove dangerous.

    “Just think of a fundamental right and the Supreme Court could expand it, redefine it, or shrink it. The reasoning of the decision fundamentally undermines the rule of law because rule of law depends on constancy of the law. Now, it becomes difficult for people to plan their behavior and you move toward a lawless state.”

    Paul Kengor, a professor and author of “Takedown: How the Left Has Sabotaged Family and Marriage,” argues Kennedy’s “commitment to a relativistic, individualistic view of everything from marriage to life to existence to meaning itself ultimately won out.”

    Kengor says Kennedy’s legal reasoning has put almost everything in the law up for grabs, “and that’s no exaggeration.”

    “Really, if you want to understand what Justice Kennedy did in the gay-marriage decision, simply look at his ‘reasoning’ in the 1992 Planned Parenthood v. Casey decision that reaffirmed Roe in all 50 states. Kennedy wrote then: ‘At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.’”

    He said, “That explains Kennedy’s willingness to redefine marriage. If Anthony Kennedy interprets liberty in America to mean that every American possesses his or her own right to define one’s own singular concept of existence, meaning, the universe, and life itself, then why can’t Americans come up with their definitions of marriage? Really, redefining marriage is small potatoes after all that.”

    Wardlow says the rationale used to impose homosexual marriage “opens the door to a lot of different problems” because now the law seems to state, “whatever you want the world to look like, you can make it look like that.”

    Bemoaning how “a concept ultimately destructive of social order” is now at the heart of constitutional law, Wardlow says the only way the decision is likely to be reversed is with better justices.

    He argues, “It’s even difficult to make arguments to federal courts when the decision isn’t based on logic or reason or precedent, which are things lawyers traditionally use. It appears the governing standards are lawless themselves.”

    Yet Gallups argues the answer is “reining in a runaway federal court through congressional action.”

    He blasts Republican presidential candidates who are unwilling to take action to defend traditional marriage.

    “What is particularly disturbing to many, is that the vast majority of the so-called ‘conservative’ Republican candidates running for president have declared that they would not seek a constitutional amendment to properly define marriage and nullify the SCOTUS decision. Their paraphrased consensus declaration is, ‘The law is the law. SCOTUS has settled the issue.’

    “Hogwash! The SCOTUS also ‘settled’ the issue in Dred Scott, and it also ‘settled’ the issue in Roe v. Wade. Now, years later, we know the horrific consequences of both of these ‘settled law’ cases. To make matters worse, it seems that Congress is not going to intervene in this legal travesty as well. One has to wonder if Congress even knows about the legally inconsistent SCOTUS rulings that took place only two years apart. Where is the mainstream media on this travesty of constitutional law?”

    Read more at http://www.wnd.com/2015/07/america-punked-on-gay-marriage/#sLxDWZKjq00jzK2O.99

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  4. Zoe July 16, 2015 at 10:30 AM #

    Pulpit Commentary

    Verse 24. – Therefore shall a man leave his father and mother, and shall cleave unto his wife. There is nothing in the use of such terms as father and mother, or in the fact that the sentiment is prophetic, to prevent the words from being regarded as a continuation of Adam’s speech, although, on the other hand, the statement of Christ (Matthew 19:5) does not preclude the possibility of Moses being their author; but whether uttered by the first husband (Delitzsch, Macdonald) or by the historian (Calvin, Murphy), they must be viewed as an inspired declaration of the law of marriage. Its basis (fundamental reason and predisposing cause) they affirm to be

    (1) the original relationship of man and woman, on the platform of creation; and

    (2) the marriage union effected between the first pair. Its nature they explain to be

    (1) a forsaking (on the part of the woman as well as the man) of father and mother – not filially, in respect of duty, but locally, in respect of habitation, and comparatively, in respect of affection; and

    (2) a cleaving unto his wife, in a conjugium corporis atque animce. Its result is stated in the words which follow: and they shall be one flesh (literally, into one flesh; εἰς σάρκα μίαν, Matthew 19:5, LXX.). The language points to a unity of persons, and not simply to a conjunction of bodies, or a community of interests, or even a reciprocity of affections. Malachi (Malachi 2:15) and Christ (Matthew 19:5) explain this verse as teaching the indissoluble character of marriage and condemning the practice of polygamy.www.biblehub.com

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  5. Bush Tea July 16, 2015 at 11:12 AM #

    @ Simple Simon
    Zoe is correct… Please do not encourage him ..least we suffer voluminous references in his support.
    It has nothing to do with children.

    Both Male and female are ‘incomplete’ in themselves by DESIGN.
    Properly brought together, they have the potential to become a WHOLE and COMPLETE unit.

    BTW …this is, in itself, a good reason why an unmarried man (or woman) is NOT a suitable candidate for the highest office in the land…..
    …well, that is if we are interested in good results.

    Like

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