The Logic of the Court and the Prospect of Homosexual Marriage

Next week, the Supreme Court will begin its consideration of two cases, one concerning the Defense of Marriage Act and the other California’s Proposition 8 Amendment, which may settle in the near-term the questions concerning the constitutionality of same-sex marriage. Both the Marriage Act and Proposition 8 define marriage as being between a man and a woman. The litigants, along with the Obama administration, claim that this definition denies a fundamental human right to homosexual couples. In order for this claim to be true, a marital union would have to be just as legitimately based upon a sodomitical act, as on a conjugal one. Can this be so? How might the Court decide on this?

It turns out that the Court has already done much to prepare the ground work for the legalization of homosexual marriage through a series of extraordinarily misconceived rulings that have legitimized the separation of sex from procreation. In order to see them in their proper light a little history regarding the status of sodomy in America is necessary.

Long before the invention of the word homosexual in the late 19th century, sodomy was morally regarded as a gravely disordered act, no matter by whom performed. In the Commentaries on the Laws of England, a hugely influential book in the American colonies and on the formation of the American legal system, William Blackstone wrote that “[Sodomy is] an offense of so dark a nature, the very mention of which is a disgrace to human nature, a crime not fit to be named (Vol. IV, 1769).”  Blackstone’s work was frequently cited in American jurisprudence.

One of the more contemporary Blackstone citations came in Supreme Court Justice Warren Burger’s concurring decision in the Bowers v. Hardwick (1986) case, which upheld the constitutionality of an Alabama law against sodomy because, said Justice Byron White, the Constitution does not confer “a fundamental right to engage in homosexual sodomy.” Agreeing, Burger wrote: “…the proscriptions against sodomy have very ‘ancient roots.’ 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 Judeao-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.”

 

The Bowers ruling also 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 in between consenting adults” (Emphasis in original).

But “cast aside millennia of moral teaching” is exactly what the Lawrence v. Texas ruling did 17 years later in 2003. This decision declared a Texas statute “forbidding two persons of the same sex to engage in certain intimate sexual conduct” unconstitutional, and, in the process, overturned the Bowers ruling in order to do it. The reasoning in Lawrence v. Texas needs to be examined closely because it clearly followed the logic and pattern of preceding decisions, except Bowers, regarding reproductive and sexual matters, and provided the basis for the challenge against the legal definition of marriage as being between a man and woman. It also distressingly revealed the level of intellectual poverty that has infected the legal profession as few of its members seem capable of grasping the relationship between morality and law. The critiques of court cases which follow here are not given to address the constitutional legal issues of whether due process or equal protection were jeopardized in some way, but to expose the underlying philosophical assumptions in the Justices’ reasoning.

In delivering the opinion of the court, Justice Anthony Kennedy claimed that “liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct” upon which the state should not intrude. The present instance in which two men were prosecuted by the State of Texas for admittedly engaging in anal intercourse, Justice Kennedy said, “involves liberty of the person both in its spatial and in its more transcendent dimensions.” Therefore, the Court asked itself, is it constitutional for a state to make “it a crime for two persons of the same sex to engage in certain intimate sexual conduct”? One would think that the answer would in large part depend on the moral character of the act in question, i.e. anal intercourse. The Court stated that, “the fact that the governing majority in a state has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.” That may be well and good, but at least such a tradition should invite an examination of whether the “practice” in question is, in fact, immoral. However, the court never addressed this issue except tangentially.

At least the Court showed some awareness that American sodomy laws historically “sought to prohibit noncreative sexual activity more generally,” but seemed clueless as to why anyone should wish to have done this or whether they should have. Rather, the Court put on display the inexorable logic behind a succession of cases which, step-by-step, went about separating sex from procreation or, more accurately, showing what the separation of sex from procreation means.

First came Griswold v. Connecticut (1965), in which the court invalidated an 1879 state law which prohibited the sale of contraceptives. The Griswold ruling created a “right to privacy” for married couples upon which the state could not intrude. Therefore, according to its reading of the Constitution, married couples could legally obtain contraceptives.

Step two was Eisenstadt v. Baird (1972), in which the Court found unconstitutional a law prohibiting the distribution of contraceptives to unmarried persons. The Court declared that, “If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” The “right to privacy” therefore does not inhere in the marital bond, but in any individual adult, as marriage, it turns out, is nothing more than an “association between two individuals.”

Traditionally, one would have thought that a decision to get married would have preceded “the decision whether to bear or beget a child,” or at least that those who decided to bear or beget a child would have understood that it was necessary to get married first. This does not seem to have occurred to the Court. But what of those who decide not “to bear or beget a child” and not to get married? How can the government possibly intrude upon something that you decide not to do? Well, only if you actually do decide to do something—which is to copulate with the expressed intention of not begetting a child. Do you possess a right to do this, along with a concomitant right to obtain the necessary tools to effect this purpose? Eisenstadt answered, yes. After all, in order to copulate, you need an “association between two individuals,” much like that of marriage, even if it only lasts half an hour. While it lasts, each individual preserves his or her “right to privacy.” In other words, contracepting an act of fornication is a right under the Constitution, just as it is in marital contraception.

But if married couples and adult singles who temporarily form a couple have a right to contracept, what about minors under the age of 16 years? What about their privacy rights? With impeccable logic, the Court took step three in Carey v. Population Services International, (1977), in which it found that it is unconstitutional to prohibit the sale of contraceptives to minors because minors are entitled to the same constitutional protections as adults. Everyone has the right to contracept.

Step four chronologically preceded step three, but comes last in the inexorable chain of logic. Step four is, of course, Roe v. Wade (1973), in which the Court found that an unborn child is not a “person,” and therefore not sheltered by either due process or equal protection. The Court declared that the “right of privacy…is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”

This ruling perfected the fissure created by the preceding separation of sex from procreation. As the Lawrence decision pointed out, “The opinions in Griswold and Eisenstadt were part of the background for the decision in Roe v. Wade.” Indeed, they were. If everyone has the right to contracept a generative sexual act, why should they be held accountable if the contraception fails and a child is generated? Hasn’t the child violated their right to privacy? What right had the child to intrude?

Recall that the Eisenstadt case had said that there should be no “unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child” (emphasis added). Obviously, in a contracepted act of intercourse, a decision has been made not to beget a child. However, in apparent disregard for this decision, a child arrives anyway. What is one to do? If the child has already been begotten, can one’s “right to privacy” still cover the bearing of the child? Yes, said Roe v. Wade. One can decide not to bear a begotten child.

Certainly, the legalization of abortion through this decision was an act of barbarity, as barbarism is defined as the inability or unwillingness to recognize another person as a human being. Abortion brings to completion the denial of procreative sex by nullifying its effects, which are seen as accidental. If you have an accident and conceive a baby, you can just clean up the mess by aborting it. The disavowal of the relationship between sex and procreation kills the child. The child is, or rather should have been, the incarnation of the love between the man and the woman. The denial of the child is the denial of this love. It also raises a troubling question: if the fruit of the tree must be destroyed, what does this say of the tree itself?

As E. Michael Jones has written, sex outside the moral order leads to death. In abortion, this result could not be more explicit.  This can be stated another way, as it has been by Fr. James Schall, though not directly in relation to abortion: “the state can take, and the democratic state seems more and more inclined to take, the direction of…killing anything that stands in the way of its imposing its order on the souls of men, men too often willing to let it happen.” The child stands in the way of this imposition, as its presence is a refutation of the manufactured “right to privacy,” and suffers death as a result.

If even the existence of a child cannot stand in the way of the imperative of contraceptive sex, what can? Can the definition of marriage as being between a man and a woman withstand its logic? In light of what it has already found, how can the Court exclude from the privilege of marriage those who exclusively devote themselves to sodomitical acts which by their nature are sterile? If there can no longer be laws against these acts, why can’t there be laws for them—as the foundation for marriage? There are very good answers to these questions, but the majority members of the Court in the cases cited above are unaware of them. The Court may find technical, jurisdictional reasons for limiting the damage from the two cases before it, but if it follows its now well-established line of reasoning, the results will be devastating.

The separation of sex from procreation logically leads to the legalization of contraception, then next to abortion, and finally to homosexual marriage, and beyond. The logic is compelling, in fact, inescapable. Only the premise is insane.

Robert R. Reilly

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Robert R. Reilly is the author of America on Trial: A Defense of the Founding, forthcoming from Ignatius Press.

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