Unhappy Union

Jameson Taylor
January 2002
Reproduced with Permission

Unhappy Union, Part I

Abraham Lincoln's support for "gay marriage" is less well known than is his spirited defense of liberty. Indeed, one would be hard pressed to find a word ever uttered by Lincoln on the subject. Thomas Jefferson likewise failed to defend the right to marry a person of the same sex, though he did urge that the crime of "buggery," which includes sodomy, be punished with castration.

Jefferson's sentiment about what was then known as "the infamous crime against nature" was shared by all of the legislatures of the 13 states when they ratified the Bill of Rights and, until 1961, by all 50 states. Such animus is difficult to explain if we believe, as homosexual rights' lobbyists are increasingly compelling many U.S. judges and legislators to claim, that there exists a constitutionally protected right to marry an individual of the same sex.

But first a brief clarification of terms may avoid some of the confusion that routinely plagues the dialogue over homosexual marriage.

The fact is that many Americans bear no animosity toward homosexuals and have no wish to deprive such persons of their fundamental human rights. At the same time, many people think homosexual relations are wrong, and for that reason oppose any attempt to institutionalize homosexual sex by granting legal recognition to couples who engage in such activities. As revealed in a recent Gallup poll, 52 percent of Americans "feel that homosexuality is an acceptable alternative lifestyle"; the same number, however, oppose any kind of legal recognition of homosexual unions. A separate poll conducted for the Washington Post found that 76 percent of Americans do not support what was specifically termed homosexual "marriage" and that 72 percent do not approve of sexual relations between people of the same sex.

Public opinion about homosexuality is not as divided as it seems. Most Americans do not suffer from a pathological fear of homosexuality. Plain common sense, though, suggests that marriage is integrally connected to sex and that sex is integrally related to having children. For this reason, most Americans simply don't believe that one has a right to marry someone with whom it is intrinsically impossible to have procreative sex. Public opposition to homosexual marriage thus has very little to do with opposition to homosexuals per se, but to rational considerations about the inherent relationship between marriage, sex and children.

That marriage and sex are inherently connected requires no argument. One cannot approve of homosexual marriage without condoning sodomy anymore than one can discuss marriage, in general, without assuming that husbands and wives have sex with one another. Those who have traditionally opposed marriage -- the Manichees, for example -- have done so because of their distaste for sex. Likewise, the legitimacy of homosexual marriage depends upon the legitimacy of homosexual sex. Sodomy is currently illegal in 16 states, Puerto Rico and the U.S. military. Five states exclusively forbid sodomy between homosexuals, whereas eleven others forbid such acts absolutely, regardless of whether they occur between homosexuals or heterosexuals.

As recently as 1986, the Supreme Court, in Bowers v. Hardwick, affirmed the constitutionality of a Georgia law criminalizing sodomy. The court ruled only on whether "the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy." The court found no such right, noting that the "right to privacy" used to legalize both contraception and abortion did not extend to sodomy because sodomy has "no connection between family, marriage, or procreation." Specifically, the justices stated that "fundamental liberties" protected by the Constitution must be "implicit in the concept of ordered liberty" and "deeply rooted in this Nation's history and tradition." The court, which failed to explain just what "ordered liberty" is, justified its opinion by citing the states' longstanding opposition to sodomy, adding that at the time of the passage of the 14th Amendment's "due process" clause, all but five states had criminal sodomy laws.

Insofar as the constitutionality of homosexual marriage depends upon the right to engage in homosexual sex, the court's decision in Bowers should have put the entire matter to rest. Since Bowers, however, Georgia (1998), along with Arkansas (2001), Arizona (2001), Maryland (1999), Minnesota (2001), Montana (1997), New York (2000), Nevada (1993), Pennsylvania (1995), Rhode Island (1998) and Tennessee (1996) have either repealed or ruled unconstitutional their statutes prohibiting sodomy. The criminal sodomy law in Louisiana is currently being tested, and, in June 2001, an independent commission recommended that the Pentagon drop its long-standing ban on sodomy and adultery. The lower courts thus remain unconvinced by the Supreme Court's logic that America's "history and tradition" provide sufficient justification for the criminalization of sodomy.

The problem is that history's counsels often conflict with one another. In the 1998 Georgia case that effectively nullified Bowers' application in that state, the court found that "the right to privacy has a long and distinguished history in Georgia" -- even longer, or at least, more significant for the justices, than Georgia's historical prohibition of sodomy.

History, in other words, is a fickle guide to constitutional interpretation. If fundamental rights are based merely on the "history and tradition" of our forefathers, then fundamental rights change as the course of history changes.

In principle, letting history determine the interpretation of constitutional law is the same as letting the majority decide what is constitutional. History is nothing more than the culmination of the thoughts, actions and customs of our forefathers. In deferring to history, we are allowing the votes of the hundreds of generations before ours -- which will always be a majority -- determine what laws today are just. In principle, the proposition that history knows what is right is equivalent to the claim that "might makes right." In practice, however, history provides about as much guidance to matters of constitutional interpretation as does natural biology. As regards the case at hand, one could look at both the history of human civilization and the current practices of diverse members of the animal kingdom to find some justification for or against sodomy. In practice, "history" may easily be used to find a constitutional basis for what is often a merely personal opinion.

The "Blessings of Liberty" that the Constitution was established to protect are grounded in the notion, affirmed by the Declaration of Independence, that all men are created equal. According to the Declaration, this equality is "entitled" by or established upon what are referred to as "the Laws of Nature and of Nature's God." The laws of nature thus provide the basis of that "ordered liberty" the justices failed to articulate in Bowers as well as the key to understanding why the Constitution cannot provide for a fundamental right to engage in sodomy.

So, how do we know what the laws of nature are? The law of nature is not the law of the jungle, but the counsels of reason by which man is able to distinguish between right and wrong and attain his natural fulfillment as a person. All men, regardless of religion or culture, possess the potential to discern the laws of nature. This common rationality is the basis of human equality.

Aristotle, who Thomas Jefferson cites as one of the sources of the Declaration, states that what is naturally right has the "same power everywhere and is not subject to what one thinks of it or not." If sodomy is against the natural law, we can expect reasonable men always and everywhere to condemn such acts. Contrary to professor Martha Nussbaum's testimony in Evans v. Romer that "prior to Christian tradition, there is no evidence that natural law theories regarded same sex erotic attachments as immoral -- unnatural, or improper," we find almost unanimous worldwide agreement that homosexual relations are unnatural.

In the Nicomachean Ethics, Aristotle himself refers to homosexuality as a form of "brutality" (1138b30) -- a vice so beneath human nature that those who engage in it are like beasts. A list of some of the other deeds Aristotle considers brutish, or "beyond the limits of vice," indicates the horror that should be evoked by such an act: "for instance, the female who is said to rip open pregnant women and devour the infants… the case of the man who offered his mother as a sacrifice to the gods and ate of her… [cases of] chewing coal or earth." Aristotle defines homosexuality as a form of brutishness that is "the result of disease or of habit." Indeed, Aristotle argues that many cases of homosexuality are the result of childhood sexual abuse. Whatever its origin, the Philosopher cautions that mere lack of self-control does not cause homosexuality, but that the condition is due to sickness or a "morbid" psychological condition. In this sense, it seems Aristotle considers homosexuality to be a sort of addiction.

Likewise, Plato clearly condemns homosexuality in his Laws (636c). In that text, a nameless Athenian interlocutor states that "there is an ancient law concerning sexual pleasures…a law laid down even in nature…it should be understood that the pleasure is given according to nature, it seems, when the female united with the nature of males for procreation. Males coming together with males, and females with females, seems against nature; and the daring of those who first did it seems to have arisen from lack of self-restraint with regard to pleasure." While the Athenian's argument may lack the refinement of Aristotle's, his opposition to homosexuality is clear.

Every major religion also condemns homosexuality. In 1996, the Dalai Lama affirmed Buddhism's traditional opposition to homosexual activity, concluding that "a sexual act is deemed proper when the couples use the organs intended for sexual intercourse and nothing else. Homosexuality, whether it is between men or between women, is not improper in itself. What is improper is the use of organs already defined as inappropriate for sexual contact." The Dalai Lama's position is similar to that of the Roman Catholic Church and many Protestant denominations, who condemn sodomy as sinful, but call for compassion for persons with homosexual tendencies. The very dignity of such persons, however, necessitates that they refrain from activities that would debase their humanity. Jewish law also condemns homosexuality (Leviticus 20:13), as does the New Testament (1 Corinthians 6:9). Similarly, the Koran prohibits homosexual relations, referring to those who commit such deeds as "(grossly) ignorant" and a "people transgressing (all limits)." Hindu tradition also defines sodomy as an "unnatural offense."

The fact that people of faith the world over detest sodomy does not indicate that opposition to such practices is "inherently theological," but that every major religion affirms a code of ethical conduct that transcends religious differences and can be known by reason alone. Needless to say, religion played no role in the Soviet Union's criminalization of homosexuality. Theological considerations also did not influence communist China's recent ruling that homosexuality is "abnormal" and "not acceptable to the public." Laws prohibiting sodomy and homosexual marriage thus do not violate the First Amendment's establishment clause. Indeed, if they did, how could we account for the fact that Thomas Jefferson, the very author of the "wall of separation between Church and state," advocated that sodomy be punished so severely?

That reasonable men "always and everywhere" condemn sodomy is an important indicator that such behavior violates the natural law, and hence, is inconsistent with the "ordered liberty" protected by the Constitution.

Unhappy Union, Part II

Above, I demonstrated the unconstitutionality of same-sex marriage by showing that homosexual relations are, almost universally, thought to be unnatural. I will now explain the rationale behind the common opinion regarding homosexuality.

Ultimately, however, the natural law approach to homosexuality can neither be understood nor enforced as an isolated ordinance, but must be considered as part of the law's general articulation of the public and private goods pertinent to marriage and procreation.

As discussed last week, the Constitution is based upon the "Laws of Nature." If the counsels of the natural law are not valid, the Constitution is not valid. In spite of the fact that the natural law teaching is essential to interpreting the Constitution, its premises are often misunderstood, and even more rarely employed, by most judges and legislators.

Natural law commentators have traditionally opposed homosexuality because it violates the first precept of the natural law, the law of self-preservation. The basis of this law is that life is good and is the necessary condition for the enjoyment of every other good.

Nature provides for the self-preservation of the human species by endowing men and women with an instinctual attraction for one another. Homosexual relations are "unnatural" because such acts frustrate Nature's intention that the human species perpetuate itself.1 Obviously, if most people chose to exclusively engage in homosexual relations humans would become extinct. Nature also discourages homosexuality in that homosexual practices generally cause or are associated with a variety of physical and mental disorders. The fact that the median age of death for homosexuals is less than 50 years of age also indicates the human body was not made to engage in sodomy.2 Similarly, the mind and soul suffer from such acts as suggested by abnormally high suicide rates among homosexuals.3

The public benefits of the natural law are attained via a natural order of loves interior to each person. Accordingly, most people never formally take into account the first natural law as a motive for doing anything, much less making love. As the court's recent emphasis on the "right to privacy" reminds us, decisions regarding sexuality and procreation are very personal. Analogously, people do not marry and have children because they recognize a state interest in "furthering the link between procreation and childrearing." In modern America, we marry for love, and love is understood to be an intensely private affair.

Love, however, also has a public benefit: children. Nature, it seems, loves children. For this reason, Nature uses the most powerful of human loves -- the passions that unite husbands and wives and parents and children -- to ensure that human beings remain in existence. Left to their own devices, lovers inevitably seek to consummate their relationship by giving their entire selves, including their bodies, to one another. The children that result, unlike the offspring of other animals, require a great deal of care and education. So much attention, in fact, that the public welfare, not to mention the children themselves, suffer greatly when lovers do not take responsibility for their offspring. Reason, supported by just law, discerns that parental responsibility should be clearly established by confining sexual relations to an exclusive relationship between husband and wife. The basis of this rule is that every sexual act between a fertile man and woman has the potential to conceive a child. Fortunately, Nature also provides parents, especially mothers, with an innate and lasting love for their children. In addition, erotic love has a unitive aspect that strengthens the bond between husband and wife during the trials that arise while raising children.

Granting that homosexual marriage in no way secures the natural end of preserving human life, homosexual apologists maintain that such unions have significant public and private benefits. The courts are beginning to agree. In Baker v. Vermont (1999), the state supreme court compelled the Vermont legislature to sanction "civil unions" between homosexuals, concluding that "legal support for a couple's commitment provides stability for individuals, their family, and the broader community."

"It is beyond dispute that the State has a legitimate and long-standing interest in promoting a permanent commitment between couples for the security of their children," admitted the court. "It is equally undeniable that the State's interest has been advanced by extending formal public sanction and protection to the union, or marriage, of those couples considered capable of having children." Yet, noted the judges, many same-sex couples already are raising children -- adopted or conceived with a former heterosexual partner or via assisted-reproductive technologies.4 The welfare of these children, opined the court, requires public recognition of homosexual unions.

In an apparent vindication of the natural law teaching, homosexual apologists are thus downplaying the Marxist-feminist rhetoric of their allies by affirming the traditional notion that love, marriage and procreation are intrinsically connected. Homosexuals love one another, so the argument goes, and should be allowed to marry. Marriage is good for children; hence, homosexuals who have children should be allowed to marry. Andrew Sullivan, testifying in Congressional hearings pertaining to the 1996 Defense of Marriage Act, spun the syllogism this way: "We do not seek equality in marriage because we despise the institution of marriage -- but because we believe in it and cherish it and want to support it. …People ask us why we want marriage, but the answer is obvious. It is the same reason that anyone would want marriage. …some of us are lucky enough to meet the person we truly love. And we want to commit to that person in front of our family and country for the rest of our lives. It's the most natural, the most simple, the most human instinct in the world."

It all seems so "obvious." The problem with such logic is that it redefines love, marriage and procreation as isolated phenomena, instead of links that together form an inviolable chain of natural relationships. Love and marriage are essentially treated as artificial constructs, devoid of any inherent content.5 Abandoning the natural law tradition, civil law similarly ceases to draw meaning and guidance from a unifying order or intelligence -- accessible to man, but not made by him -- and becomes nothing more than an ad hoc code imposed by the will of the stronger. Thus the means by which the public and private benefits of homosexual marriage are attained conflict with the proper ends of democratic government, freedom, and even love itself.

At least 10 states -- California, Delaware, Massachusetts, New Jersey, New Mexico, New York, Ohio, Vermont, Washington and Wisconsin -- and the District of Columbia have approved adoptions by openly homosexual persons or couples.6 Delaware joined this dubious club on 28 September 2001 when a family court in New Castle County approved a second-parent adoption in which a gay man was allowed to become an equal parent of two boys his lover had independently adopted.

The court prefaced its ruling by explaining that "words of love and commitment" bind the homosexual "fathers" and their "sons" together and should be recognized "in the eyes of justice and law." The court also claimed that the boys' best interests were being served because they had a "right to expect placement in a stable and permanent home…[and] a right to expect a caregiver willing to address [their] unique needs." Love, in other words, has a certain content -- for the court, little more than a functional content.7

For most observers, the legitimacy of homosexual marriage similarly depends on whether homosexual parents can care for children as well as heterosexuals. As asserted in Baehr v. Miike, the 1996 case that opened the way for homosexual marriage in Hawaii, "the primary quality of parenting is not the parenting structure, or biology, but is the nurturing relationship between parent and child."8 In Baehr, social scientists and psychologists persuaded the court that homosexual parents can and do raise healthy, happy children. As even homosexual apologists admit, however, studies regarding the effect of homosexual parenting on children are "few and open to criticism." Perhaps this fact explains why the plaintiffs in a 30 August 2001 case challenging a Florida law prohibiting adoption by homosexuals declined to attempt to demonstrate that homosexual "families" are as stable as heterosexual ones.9

Regarding the case above, Lofton v. Kearney, commentators for both sides stressed that the decision was based on the judge's conclusion that "married heterosexual family units provide adopted children with proper gender role modeling and minimize social stigmatization." This interpretation is unfaithful to the actual decision, which noted that the plaintiffs had not even tried to argue the case on such merits. Instead, Judge King's ruling stressed that because "foster families are grounded in state law and contractual arrangements" a "fundamental right" to "familial privacy, intimate association and family integrity" for such relationships does not exist; likewise, there is no "fundamental right to adopt, be adopted, or apply for adoption." "The state does not involve itself with natural family units that exist independent of its power," stated Judge King, "but ones directly created by it."

For Judge King, as well as the Constitution, neither statutes nor contracts, nor even "emotional ties," can create fundamental rights. Such rights serve as a guide and limit to state action precisely because they are "unalienable" and exist independent of whether they are recognized by positive law. The right to love, the right to marry and the right to have children are not contrivances of legislative fiat, but inherent to man's very nature. As affirmed in Skinner v. Oklahoma (1942) as well as Loving v. Virginia (1967), "We are dealing here with…one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race."10

In creating a fundamental right to homosexual marriage, the courts are tacitly assuming that the state has the power not only to regulate, but also to define and determine what marriage and procreation are. The legalization of homosexual marriage will not secure the rights to privacy sought by homosexual lovers, but will only invite further government intrusion into the private lives of all Americans.11 Marriage will cease to be understood as a uniquely private good that exists independently of state power and will increasingly be defined according to the desires of whatever special interest groups manage to hold sway.

Once marriage has become a creature of the will, love will not be far behind. Love, however, is more than simply "words and commitment." Love has a certain unchangeable form that cannot be altered by positive law, arbitrary preference, or emotion. Love must be free. This intuition, perhaps, explains the courts' recent concern that matters of sexuality be constitutionally protected by a "zone of privacy." The natural right to privacy, or better stated, the right to act according to one's conscience, protects the integrity of love by forbidding actions that reduce persons to merely means to an end, even if that end is pleasure. Such mutual respect is necessary if lovers are to be free to give their entire selves for their entire lives to one another.

Finally, then, we must ask whether love itself -- in its "most natural and "simple" form -- will be furthered by the legalization of homosexual marriage? The answer to this question can only be hinted at here, but its outlines are perceived when one realizes that love must be unconditional. Homosexual lovers are simply incapable of fully giving themselves to one another. This gift of self must include the body, with all of its procreative faculties, no less than the mind and will. The "self-giving" entailed in homosexual relations, however, is a form of "self-wasting" that makes futile the mutual gift of human sexuality. A love that not only requires but also encourages such self-abuse can hardly be called "unconditional."

Unhappy Union, Part III

In Part Two of this series, we showed that any public benefits that may derive from homosexual marriage are purely conventional in origin. Hence, these benefits -- especially those related to the rearing of children -- cannot be used to establish a "fundamental" right to homosexual marriage.

Homosexual marriage, however, also does not foster the private ends associated with marriage: in particular, the capacity to give and receive unconditional love.

Both reason and experience confirm that "true" love seeks a commitment only satisfied by marriage. This fact lends a certain credibility to arguments favoring homosexual marriage.12 Love seeks consummation in marriage because marriage gives an objective form to the passions love inspires. As explained in Griswold v. Connecticut, "Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths…." The intimacy of marital love, surmised the court, requires a staunch defense of "the sacred precincts of marital bedrooms" -- a defense that was used to legalize contraceptive birth control.13

The privacy necessary to marital intimacy is a reflection of the essential exclusivity of love. This exclusivity stems from the desire of lovers to fully share themselves with one another. Love is not love to the degree that this mutual gift of self does not occur. The heart -- whose desires are expressed in the dictates of the conscience -- cannot love when it recognizes that its love is unrequited.

If sex means anything at all (and, if it doesn't, Griswold's protection of marital sexuality is pointless), then it is because the sexual act is a concrete sign of one's interior disposition toward the beloved. Physical acts that objectify one's self or partner indicate an attitude of use of the person as a mere means to an end\pleasure, power, egoism, etc.14 Such physical abuse distorts the conscience as well as the capacity to recognize and receive genuine love.

Certain acts of marital sexuality, not to mention non-marital sexuality, are thus destructive of the private good of love that marriage is supposed to foster. That the government has a right to forbid such acts was affirmed in Griswold itself, in Justice Goldberg's concurring opinion: "the Court's holding today…in no way interferes with a State's proper regulation of sexual promiscuity or misconduct," as for example, "adultery, homosexuality and the like."

In spite of Griswold's clear condemnation of homosexuality, proponents of homosexual marriage correctly perceive that Griswold's approval of contraceptive sex helped pave the way for the legalization of sodomy in many states and, they hope, will do the same for homosexual marriage. Homosexual commentator Stephen H. Miller articulates the link between contraception and homosexuality: "After ethe pill' became widespread during the early e60s, human sexuality was freed as never before from being necessarily tied to procreation. Heterosexuals who value sex as much for emotional intimacy (or even, post-Playboy, physical recreation) as for reproduction can more easily make the leap into seeing enon-procreative' homosexuality as an acceptable variant of sexual expression."

As Miller observes, contraceptive sex and sodomy are equivalent insofar as both divorce "emotional intimacy" from the possibility of "reproduction." Such acts are inconsistent with the attitude of unconditional love marriage requires because they entail the intentional denial of a part of one's self -- one's physical fertility.15 This deliberate withholding of the gift of self is inconsistent with the "sacred" intimacy of marriage that Griswold pretended to preserve. To put the matter another way, not every sexual act conducted in private between two consenting adults will foster the "values of caring, commitment, mutual interdependency and love" that married persons desire to "put into practice," but only those acts that express the unreserved self-giving uniquely appropriate to marriage. Sodomy and contraceptive sex intrinsically prevent this mutual sharing on the physical level -- and hence, at the emotional level as well.

The heart's demands, however, will be satisfied by nothing less than unconditional love; and so homosexual lovers with even the best of intentions find it very difficult to remain faithful to one another. Most, if not all, of the proponents of homosexual marriage have quietly let it be known that their understanding of marriage does not necessarily entail lifelong monogamy. Homosexuals, in other words, do not really want to get married -- at least not in the sense that most people, including the Griswold court, define marriage. What they do want, along with many unmarried cohabitating heterosexuals, are the financial and legal benefits that marriage provides -- without any of the moral responsibilities that real love entails. "What is needed," argues homosexual advocate Peter Tatchell, "is a new modern, democratic, egalitarian and flexible model of partnership rights…any new legal framework ought to be universalist; applying to both same-sex and opposite-sex couples…thereby creating a broader and more powerful coalition for legal reform."

With the number of unwed cohabitating partners in the United States having risen by 72 percent over the past ten years, Tatchell's logic is unassailable. Over 4,000 companies, colleges, universities and state and local governments -- a 50 percent increase over the last two years -- already offer domestic partner (DP) health insurance coverage. The number of Fortune 500 companies offering DP benefits has more than doubled in the last three years.16

Federal and state legislators and judges\apparently using the tragedy of 9/11 as cover -- are also increasingly bypassing voter mandated "Defense of Marriage" laws and granting DP benefits to homosexuals. On 25 September 2001, the U.S. House of Representatives -- "seeking to avoid major issues in the wake of the Sept. 11 terrorist attacks" -- voted to use federal funds to pay for the District of Columbia's DP benefits program. The Senate overwhelmingly passed a corresponding measure on 7 November 2001, and President Bush signed the bill on 21 December 2001. In the wake of the 9/11 tragedy, the Red Cross, the United Way (via Safe Horizons) and the Sally Mae 911 Education Fund are disbursing survivor benefits to domestic partners. The federal September 11th Victims' Compensation Fund will also likely be used to provide financial support for domestic partners. In Pennsylvania, former governor Tom Ridge (now director of "Homeland Security") ensured that that state would provide benefits to the "significant other" of those persons injured or killed in the 9/11 attacks. New York governor George Pataki also issued an executive order making such benefits available through the state's Crime Victims Board; and New York City mayor Rudolph Giuliani has even gone so far as to agree to appear in drag on Showtime's "Queer as Folk" to raise funds for disaster relief efforts.

Adding insult to injury, the California State Assembly passed on 12 September the "most comprehensive domestic partner bill in the country." Governor Gray Davis signed the bill into law in defiance of a 7 March 2000 referendum in which over 60 percent of Californians voted against the legal recognition of same sex marriages.17

Next door, the Washington Supreme Court, on 1 November, granted same-sex partners the right to inherit the property of their deceased lovers. A civil union bill similar to that passed in Vermont is also on the docket in Washington. On 26 December 2001, the Vermont Supreme Court rejected a suit challenging the validity of that state's civil union law. Similarly, a Maryland judge, on 21 November 2001, denied citizens the right to vote on a recently passed homosexual "rights" law, making Maryland the 12th state to give "sexual orientation" protected status.

Finally, Congress is currently considering three bills that, if passed, would begin the unraveling of the 1996 federal Defense of Marriage Law. The first, ironically titled the "Local Law Enforcement Enhancement Act of 2001," would expand federal jurisdiction to cover "hate" crimes based on "actual or perceived" sexual orientation. The bill enjoys the sponsorship of 51 senators and 204 representatives.18 A second bill, the Employment Non-Discrimination Act (ENDA), would make it illegal to choose not to employ someone because of their perceived sexual orientation. The bill has 44 sponsors in the Senate and 186 sponsors in the House. The Permanent Partners Immigration Act, which has the support of only 88 Congressmen, would grant immigration rights to the same-sex partners of U.S. citizens and lawful permanent residents.

Such legislation, ultimately intended to legitimize same-sex marriage, is simply unconstitutional. Neither the natural law nor the "history and tradition" of the United States has ever recognized a "fundamental" right to same-sex marriage. The right to marry and procreate, like the rights to life, liberty and the pursuit of happiness, are unalienable precisely because they are not of human origin and so not subject to the machinations of positive law. True happiness as well as true love can only be attained by freely choosing to live according to the laws of human nature upon which our natural rights are based. Same-sex marriage, by undermining the very basis of family law itself, will destroy the "sacred" intimacy once accorded marriage by transforming the family into a mere creature of public policy. As we recall, it is not the founders of the American Republic, but Karl Marx and the founders of the communist party, who desire this abolition of the family.


1 P. Cameron et al., Psychological Reports, "Does homosexual activity shorten life?" vol. 83 (3 Pt 1) Dec. 1998, pp. 847-866. Although some of Paul Cameron's research may be inaccurate, Psychological Reports is a peer-reviewed academic journal. [Back]

2 Granted, Nature's ends are not always perfectly met; reason must remedy what Nature fails to provide; in this case, we must mention that sexual orientation does not negate free will. But even assuming that a genetic predisposition for homosexuality exists, how is it passed on from parent to child since homosexuals cannot have children with one another? Moreover, according to author Tim Hughes, 83 percent of homosexuals do not even want their children to be homosexual. [Back]

3 "Facts About Suicide," http://www.religioustolerance.org/sui_fact.htm. ReligiousTolerance.org, which supports "equal rights" for gays and lesbians, claims gay teens, for instance, account for one in three teen suicides. [Back]

4 The Vermont court helped create this situation by unanimously ruling in 1993 that because "the family unit is comprised of the natural mother and her partner," a lesbian "partner" has the right to adopt the natural children of her lover. [Back]

5 Such claims smack of atheistic humanism, which assumes that man, like the Creator God, is capable of making essences out of nothing. [Back]

6 On 10 October 2001 the Georgia Court of Appeals considered an appeal of an order barring a lesbian mother living with her partner from visiting her three sons. In September 2001, the Pennsylvania Supreme Court also heard arguments on whether a lesbian should be granted visitation rights pertaining to the biological daughter of her ex-lover, also a lesbian. Such confusion is an inevitable result of the abandonment of the natural order of human relationships. [Back]

7 In order to attain the Marxist ideal of abolishing the family, the bond between parent and child must be reduced to the provision of a minimal level of bodily care and comfort. [Back]

8 Baehr was nullified by Hawaiian voters, who overwhelmingly passed a 1998 amendment defining marriage exclusively as a union between one man and one woman. Homosexual lobbyists specifically compelled the Vermont courts to consider the constitutionality of homosexual marriage because Vermont's constitution is very difficult to amend via popular referendum. Currently, 35 states have "Defense of Marriage" laws similar to that passed by the federal government in 1996. The Alliance for Marriage is also asking for a constitutional amendment that would clarify that marriage is the union of one man with one woman. [Back]

9 Florida is the only state with such a law; however, Mississippi and Utah ban homosexual couples from adopting children. [Back]

10 It is telling that Baker v. Vermont's citation of Loving omits any reference to the basic right of "procreation." [Back]

11 The libertarian assumption that the subjective will is the ultimate arbiter of good and evil augments public power by freeing the individual, but also the state, from any trans-political constraints. [Back]

12 Complains Elizabeth Birch, president of the Human Rights Campaign, "We are denied the right to put into practice the values embodied in any civil marriage -- the values of caring, commitment, mutual interdependency and love." [Back]

13 Griswold misleadingly ignores the fact that the so-called Comstock laws had never sought to interfere in marital sexuality by prohibiting birth control altogether (coitus interruptus being the most common form of birth control practiced at the time), but originated as part of a more general campaign against lewd behavior and pornography. [Back]

14 Andrew Sullivan, the most vocal proponent of homosexual marriage, describes his attraction to other men in terms of possession. Sullivan marvels "at the exotic beauty of other men, at the literally unbelievable sense of having them." [Back]

15 Couples who cannot have children as well as couples who properly practice NFP do not intentionally deprive one another of the gift of self; hence, their interior attitude is still one of unconditional love. For more information on this gift of self, see John Paul II's collection of general audience addresses now known as the Theology of the Body. [Back]

16 The city of San Francisco is largely to blame for this revolution. In 1997, San Francisco became the first local government to cease granting contracts to companies that refuse to offer DP benefits. [Back]

17 California legislators also voted into law a measure (SB 257; also see SB 225, SB 381) that could be used to classify as a "hate crime" speech that objects to homosexual behavior. AB 1338, which would have granted "civil union" status to homosexual relationships, was withdrawn from consideration on 14 January 2002. [Back]

18 The bill's critics -- the ACLU, for example -- are concerned that it will allow the federal government to prosecute "based on evidence of speech that had eno role in the chain of events' that led to the violent act." We should also note that the FBI's annual Hate Crime Statistics Report, released on 19 November 2001, found that although the incidence of hate crimes rose slightly over the past year, those attributed to "sexual orientation" decreased. [Back]

Jameson Taylor is the author of America's Drug Deal: Vaccines, Abortion, Corruption. For more information, call 540-636-3549 or visit http://www.jamesontaylor.com.