Jameson Taylor is a writer at HLI. This article is reprinted courtesy of HLI Reports, a publication of Human Life International..
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.
Perhaps a brief clarification of terms may avoid some of the confusion that routinely plagues the dialogue over homosexual marriage.
1) Homophobe — A homophobe is anyone who opposes whatever homosexuals want. This tendency of “gay” rights activists to vilify anyone who disagrees with them is irrational and bigoted. Those who are incapable of reasonable discussion have no recourse but force and fraud. Such individuals are actually “logophobes,” i.e., they fear logic.
2) Marriage — Whatever marriage is, it has something fundamental to do with sex.
3) Sex — Sex has something fundamental to do with having children; also see definition two.
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, however, many people think that 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 have 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 11 others forbid such acts between homosexuals and heterosexuals.
As recently as 1986, the Supreme Court, in Bowers vs. 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 human person. All men, regardless of religion or culture, possess the potential to discern what are 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 vs. 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.
Aristotle himself refers to homosexuality as a form of “brutishness” — 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 indicates the horror that should be evoked by such acts: “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 likely the result of childhood sexual abuse. Whatever its origin, Aristotle 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 that Aristotle considers homosexuality to be a sort of addiction.
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 held by the Roman Catholic Church and many Protestant denominations, who condemn sodomy as sinful, but call for respect and 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.
