In a July 20th Wall Street Journal op-ed, Theodore B. Olson and his co-author Kenneth B. Mehlman urged that “Congress Should Codify Same-Sex Marriage” in the inaptly named Respect for Marriage Act. No surprises here as Olson had successfully argued in the Ninth Circuit Court for same-sex “marriage” in the Perry v. Schwarzenegger case (2012) and Mehlman is an open homosexual who has long lobbied for same-sex “marriage.”
What worries them is the remark of Justice Clarence Thomas in the recent case that overthrew the Roe v. Wade decision. Justice Thomas thinks that the Supreme Court should reconsider the Obergefell v. Hodges case that established a right to same-sex “marriage” because it has no more of a constitutional basis than did the fictive right to abortion. So, Olson and Mehlman have good reason to be worried.
Homosexual “marriage” came about only through the enforcement of the state as dictated by a Supreme Court decision. Anyone who doubts the constitutional inanity of Justice Anthony Kennedy’s articulation of the majority decision has only to read it. If not now, do it for Lent. Same-sex “marriage” has never existed in nature for the simple reason it is unnatural, that is, against the “Laws of Nature and of Nature’s God.” Heterosexual marriage, on the other hand, as Justice Joseph Story wrote, “is in its origin a contract of natural law.” It does not need government in order to exist. Rather, the government needs marriage in order to exist. Natural marriage is prior to the state and therefore independent of it in its substance. The state may regulate it for purposes of the common good but may not change its ends because its ends do not originate in the state, but in nature.
However, this is precisely what the Supreme Court tried to do in the Obergefell v. Hodges decision – change the nature of marriage by redefining its ends. It was a pure act of human will, bereft of rationality, predisposed to nothing but itself. Positive law has since bent over backwards to entitle the same-sex fiction that homosexual arrangements are “families,” many with children that are bred apart from them so that two men, or two women, can pretend that both are the child’s parents. This fiction exists only by ignoring the reality of the child’s mother in the one case, or of the father in the other, who either way are excluded from this “family.”
In other words, such “families” are made to be broken, or rather broken to be made, by design.
Olson and Mehlman try to cloak the fundamental injustice of what they are promoting under the guise that “marriage is a fundamental freedom deeply rooted in the history and traditions of our country.” This is a nice bit of semantic legerdemain, appropriating the traditional notion of marriage for the idea that same-sex relations are equivalent to the marital act as a foundation for marriage. However, this was never held to be true in the history and traditions of our nation. Quite the opposite. In 1778, Thomas Jefferson’s Bill for Proportioning Crimes and Punishment proposed: “Whosoever shall be guilty of Rape, Polygamy, or Sodomy with man or woman shall be punished, if a man, by castration, if a woman, by cutting thro’ the cartilage of her nose a hole of one half inch diameter at the least.” The Virginia legislature rejected the proposed legislation, preferring to maintain the death penalty as the maximum punishment.
In Bowers v. Hardwick (1986), a Supreme Court case which upheld the constitutionality of an Alabama law against sodomy, Justice Warren Berger wrote in his concurring opinion that,
Decisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of Western civilization. Condemnation of those practices is firmly rooted in Judeo-Christian moral and ethical standards. Homosexual sodomy was a capital crime under Roman law. . . . During the English Reformation, when powers of the ecclesiastical courts were transferred to the King’s Courts, the first English statute criminalizing sodomy was passed. Blackstone described ‘the infamous crime against nature’ as an offense of ‘deeper malignity’ than rape, a heinous act. . . . To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching.
In a further history lesson (Olson and Mehlman seem to have missed this class), Burger pointed out that,
Sodomy was a criminal offense at common law and was forbidden by the laws of the original 13 States when they ratified the Bill of Rights. In 1868, when the Fourteenth Amendment was ratified, all but 5 of the 37 States in the Union had criminal sodomy laws. In fact, until 1961, all 50 states outlawed sodomy, and today , 24 states and the District of Columbia continue to provide criminal penalties for sodomy performed in private and between consenting adults.
Olson’s and Mehlman’s attempted hijacking of “the history and traditions of our country” to support same-sex “marriage” would require an enormous Orwellian memory wipe in order to succeed. Those who have not yet been lobotomized will recognize that same-sex acts were unanimously, unequivocally considered morally noxious – until the very recent past.
In the 2003 case, Lawrence v. Texas, Justice Anthony Kennedy discovered that the act of sodomy was guaranteed in the U.S. Constitution. The case involved two men who were prosecuted by the state of Texas for engaging in anal intercourse. They pleaded no contest and were fined $125. They appealed the conviction on Fourteenth Amendment equal protection grounds, claiming the Texas statute was unconstitutional. When the Texas High Court upheld the law, it was appealed to the U.S. Supreme Court.
One wonders how a right to sodomy could be construed from the Fourteenth Amendment, when the vast majority of states that ratified it had laws against sodomy. Nonetheless, Justice Kennedy said the case “involves liberty of the person both in its spatial and its more transcendent dimensions.” I get the spatial dimensions of sodomy (they’re rather down to earth) but have trouble grasping its more transcendent dimensions. Exactly what does sodomy transcend? Not much, I would think, or rather nothing.
Nevertheless, some ten years later, in Obergefell, voilà, Justice Kennedy discovered that there was no constitutional reason not to accept same-sex relations as the basis for marriage. Anything that transcendent must be sacramentalized!
Like Roe v. Wade, the sooner these decisions are overturned, the better for the return of the United States to a condition of moral sanity – the kind that leads to true transcendence.
If you value the news and views Catholic World Report provides, please consider donating to support our efforts. Your contribution will help us continue to make CWR available to all readers worldwide for free, without a subscription. Thank you for your generosity!
Click here for more information on donating to CWR. Click here to sign up for our newsletter.
Well, don’t worry. Fifty years from now, Obergefell will probably be overturned. By then, even heterosexual marriage will have virtually disappeared, and there will be no system whatsoever of mutual lifelong commitment of any kind or composition concerning the begetting and raising of children. Children will be generated in the labs and raised by the state at official schools. Sexual activity will not only be divorced from procreation, but from the entire notion of relationship.
I think Aldous Huxley wrote a book with that plot.
What happens in Washington, DC matters not to Catholics. The man-made government is not part of God’s plan—the Church is. Catholics learn from priests what behavior pleases God—–we need more people in Church.
Yet many of the priests are not talking about sin anymore.
Opposing Reilly’s reasoned argument, we can expect two counterarguments.
The first will be multicultural and intersectional (and all that stuff), and will maintain that the Justice Kennedy redefinition of “marriage” is globally sensitive; it conforms with the arbitrary Sharia enlightenment which transcends (!) our very parochial Natural Law or any of its “homophobic” (Kennedy’s wording) defenders.
The second counterargument will be based on the First Amendment of the Constitution…
The case will be made that Secular Humanism is now the national religion in the United States, as now “established” by Justice Kennedy and by more recent Executive fatwas (e.g., gender theory and transgenderism). The First Amendment provides only that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof….” It never occurred to the Founding Fathers to limit such overreach by either the Judicial or Executive branches of the Federal Government.
The Ayatollahs Kennedy and Biden win on both unconstitutional and constitutional grounds.
The problem with the constitution being interpreted today is it was designed by and for a moral and religious nation and few on the court can come from that perspective. The ones that can and do come from that perspective, are moral and religious judges are constantly beaten down, attacked, and threatened. It is sad that we as a nation cannot see how we are destroying the beauty God created and therefore destroying civilization. 🙏🙏🙏
On purely procedural grounds, there is a slight difficulty with treating Obergefell in the same class as Roe. Roe was seriously flawed on three grounds, while Obergefell is flawed on two.
1) The judicial reasoning in Roe was illogical. The claim was that the justices didn’t know whether a fetus is a human being (uncertainty) but they did know it is not a person as that term is used in the Constitution (certainty). This is basing a certainty on an uncertainty, which is logically impossible. Further, in specific terms, the term “person” in the Fourteenth Amendment was intended to specify that all human beings have the same natural rights, thereby effectively overturning the decision in Scott v. Sandford, which separated humanity from personality, claiming that all rights, natural and statutory, come from the State. The clear meaning of the Fourteenth Amendment is that all human beings are automatically persons as that term is used in the Constitution. To maintain that you KNOW it is not a person, but that you DON’T KNOW if it is a human being was, as Justice White acknowledged, raw judicial power used to override reality, viz., that you can derive certainty from uncertainty.
2) Roe was moot. The child had already been born. Prior to Roe, the Constitution was held to prohibit federal courts from hearing moot cases. This was reinterpreted in 1973 to mean “in most instances,” meaning whenever a court wanted to, it could.
3) Roe was an example of “legislation by judiciary,” based on an expansion of judicial review that usurps the powers of Congress. Originally used to protect and extend slavery (according to constitutional scholar William Winslow Crosskey), since 1873 and the Slaughterhouse Cases it has been used to expand state power and diminish that of citizens.
Obergefell is flawed on “only” two constitutional grounds.
1) The Constitution applies ONLY to civil society and to the civil rights of natural persons. It has no authority or jurisdiction in either religious society (First Amendment) or domestic society (which has no specific protection in the Constitution as the Framers had no reason to think that the State would ever interfere in marriage and family). Obergefell treats marriage as a civil right when it is a domestic right, where the Court has no jurisdiction except to protect the civil rights of family members. To claim jurisdiction over the definition of marriage is almost as great an expansion of State power as the claim to be able to create certainty out of uncertainty.
2) Even if the Court had any jurisdiction in domestic society (which it doesn’t, apart from protecting the civil rights of family members), it — again — has no authority to legislate. Only Congress is supposed to do that. If Congress passed a law calling same sex unions “marriage,” the Court would then be required to strike it down as being unconstitutional, Congress having no power to legislate for domestic society. In order for Congress to claim jurisdiction over domestic society, it would have to amend the Constitution, which itself might be construed as an unconstitutional expansion of State power — does Congress have the power to annul the Constitution that grants Congress its power? The Constitution forms a specific civil society. It does not establish a religion or form a family.
Thus, despite decades of hysteria over the presumed imposition of “religion,” religion really has nothing to do with the matter, other than to agree with the natural law. The way the Supreme Court argues these matters, it’s as if they decided that theft should be legal on the grounds that “Thou shalt not steal” is a religious prohibition.
Plural marriage is next in line. If love is love then why limit how much or how many?
‘ You will lend to many nations and will borrow from none ‘ – promise of The Lord to nations that heed His Word ..and we see a nation that is trillions in debt , that debt and the manipulations to deal with it said to be the reason for the many issues that are often hidden from the sight of most ..
May the Flame of Love of the Immaculate Heart blind Satan and let in the Light of the Holy Spirit to also discern with gratitude as to how The Church is dealing with these areas with the wisdom and patience of The Mother .
Right reason and justice Kennedy’s Obergefell wrong reason. Is there a right to sodomy, and if so is that the basis for revising the definition of marriage between a man and woman? [in the distinction the resolution].
Colonial New England governments during the 17th century became theocracies with Puritanical prohibitions akin to Islam’s Sharia laws. Britain realized the dangerous usurpation of individual rights and imposed the Royal Charter, implementation of the Common Law of England. Common Law permitted what adults do in private tolerable [a right to privacy] even if morally abysmal. It did not perceive that as a right to change the traditional definition of marriage held through the centuries particularly Christianity, “One wonders how a right to sodomy could be construed from the Fourteenth Amendment” (Reilly).
Now our culture has changed dramatically homosexual behavior celebrated as enlightened [the pitch dark new enlightenment]. Peter Beaulieu raises a key issue on the 1st Amendment, the right to freedom of religious expression. He alludes to what extent that can be tolerated. For example, Santeria in its grotesque forms. Reason, that is, right reason posits limits. Why? Because right reason is guided by inherent principles of natural law. Otherwise reason becomes unreasonable, and madness, as were the entirely unprincipled legal opinions of Faux Catholic Anthony Kennedy, the most dangerous heretic to ever hold a seat on the Supreme Court. There is no long held principle by which we may assume that whatever two adults wish to do in private [or public] is basis for a right to the legality of marriage that is defined by such errant behavior. Kennedy’s actual invention of principles [Reilly queries, Justice Kennedy discovered that there was no constitutional reason not to accept same-sex relations as the basis for marriage] of justice precipitated the moral chaos we suffer today America quickly becoming the United States of Sodomy. Insofar as injustice opined as justice it will continue [despite a truly enlightened Supreme Court majority] since the Party can create more moral mayhem through the Legislature.
What could have astonishingly, so rapidly driven a manly, heroic American culture to become flaccid, effeminate [macho types included] sodomists? That answer must lay at the feet of one once called The Angel of Light.
Are you referring to Justice Kennedy THE CATHOLIC? Impossible for a CATHOLIC Supreme Court Judge to think that sodomitic marriage can be found among the Constitution’s guarantees. Must be referring to some other Kennedy perhaps.
I am against the State punishing sodomy between consenting adults. I see no good purpose to take two adult men doing that in private and throwing them in jail with other men.
That having been said I am all for appeals to persons in such immoral relationships to abandon their sinful ways. Be converted to Jesus Christ and his Church or if they are already Catholic they should go to confession.
The Church should deal with the sin of gay sex between adults. Not the bloody state.
Gay marriage is odious because the leftist gays refused to be content with it. Forced Cake Baking and other anti-Christian tyrannies & now devolving into state sponsored mutilations of children and or considering pedophilia an “alternate Lifestyle” are a bridge to far.
Stop the insanity. For sake of Christ Almighty stop it.