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.
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