An Unhappy Union: Why Same-Sex Marriage Is Unconstitutional

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.
by Jameson Taylor | Source: Catholic.net
Last month’s Human Life International Reports demonstrated the unconstitutionality of same-sex marriage by showing that homosexual relations are, almost universally, thought to be unnatural. We 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.

The Natural Law

As discussed last month, 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.1 Homosexual relations are “unnatural” because such acts frustrate Nature’s intention that the human species perpetuate itself. 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 average lifespan of a male homosexual is 43 years (39 if one has AIDS) indicates that the human body was not made to engage in sodomy.2

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 from 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 vs. 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.3 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 leftist 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 phenomenon, 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.4 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.

What is Love?

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.5 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, a functional content.6

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 vs. 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.”7 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.8

Regarding the case above, Lofton vs. 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 vs. Oklahoma (1942) as well as Loving vs. 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.”9

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.10 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 or 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.”

Part three of this series will elaborate upon the self-giving required by true love. As we will see, the courts’ prevailing interpretation of the right to privacy is inconsistent with the private good of love that marriage is intended to preserve. Part three will conclude by summarizing the barrage of anti-marriage legislation passed in the wake of the 11 September tragedy.

FOOTNOTES

1. 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. Even assuming 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 Tim Hughes, 83 percent of homosexuals do not even want their children to be homosexual.

2. Similarly, homosexual men are six times more likely to have attempted suicide than heterosexual men.

3. 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.

4. Such claims are essentially religious, assuming that man, like the Creator God, is capable of making essences out of nothing.

5. 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.

6. 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.

7. 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.

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

9. It is telling that Baker vs. Vermont’s citation of Loving omits any reference to the basic right of “procreation.”

10. 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. 




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Published by: Sergio Luis Diaz Armstrong
Date: 2009-01-01 10:00:00
Animals mate to procreate. Humans mate to love.

Published by: Daniel Largy
Date: 2009-01-01 10:00:00
Excellant article should be sent to all those in government dealing with so-called same sex marriage

Published by: martin
Date: 2009-01-01 10:00:00
@sergio luis diaz armstrong, Humans do it to both, the main intention that God had for our sexuality is to reproduce

Published by: Sergio Luis Diaz Armstrong
Date: 2009-01-01 10:00:00
Animals mate to procreate. Humans mate to love.

Published by: Daniel Largy
Date: 2009-01-01 10:00:00
Excellant article should be sent to all those in government dealing with so-called same sex marriage

Published by: martin
Date: 2009-01-01 10:00:00
@sergio luis diaz armstrong, Humans do it to both, the main intention that God had for our sexuality is to reproduce

Published by: Sergio Luis Diaz Armstrong
Date: 2009-01-01 10:00:00
Animals mate to procreate. Humans mate to love.

Published by: Daniel Largy
Date: 2009-01-01 10:00:00
Excellant article should be sent to all those in government dealing with so-called same sex marriage

Published by: martin
Date: 2009-01-01 10:00:00
@sergio luis diaz armstrong, Humans do it to both, the main intention that God had for our sexuality is to reproduce

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