NOTE: IF YOU'VE READ THIS ONCE ALREADY, CLICK THROUGH AND READ THE FINAL PARAGRAPH ADDED JUST LAST NIGHT. IT'S NEW AND IT'S AN EXCELLENT CONCLUSION. -TIM
(Tim) Two friends copied me on the following correspondence. I have chosen not to identify the person asking the question. The answer is given by Brian Bailey, an Indianapolis attorney who, with his wife Nicole and their children, are a part of Church of the Good Shepherd here in Bloomington.
A friend asks Brian this question: A commenter here at BaylyBlog linked to another blog about a woman in the Presbyterian Church in America (Missy Irons) who says she is in favor of homosexual marriage because it is their civil right. She claims that since we Christians are afforded protection through civil rights, then we shouldn't be hypocritical and deny them the same. (That's basically me paraphrasing a few of her blogs into one sentence, I'll admit). How would I respond? Is there any "secular" reason to oppose homosexual marriage?
Brian Bailey responds: I'm happy to take a stab at answering your e-mail... I’ve numbered the paragraphs to streamline the response and give it more organization.
1. The proponent of sodomite marriage as a civil right seeks to change the status quo across all previous cultures, eras, and places. Any earthling would admit sodomite marriage is a radical innovation peculiar to our post-20th century Western culture. The promoter has the burden to prove the existence of that right.
2. To assert a right is necessarily to appeal to some source of authority beyond merely saying, This is the way I want things to be. The proponent must appeal to some source, beyond his predilections and preferences, for the alleged right to sodomite marriage. And to say that homosexual marriage is a civil right proves nothing. He must locate the source of the right.
3. There are two, and only two, possible sources of a right: God or man.
4. Historically, Americans have believed and declared that God is the ultimate source of their rights. “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” This is not a theoretical construct or a way to lend solemnity to foundational legal documents. A people steeped in the knowledge that they live, move, and exist in God (Acts 17:28), that the truth shall set them free (John 8:32), and that Thou shalt not steal (Exodus 20:15), will confess that God is the source of their rights. See, e.g., Indiana Constitution, preamble (“TO THE END, that justice be established, public order maintained, and liberty perpetuated; WE, the People of the State of Indiana, grateful to ALMIGHTY GOD for the free exercise of the right to choose our own form of government, do ordain this Constitution.”)...
5. Has God, without the mediating influence of magistrates or other secondary causes, in Scripture directly commanded or permitted sodomite marriage? Of course not. But I wouldn’t expect anyone who appeals to civil rights to rest on arguments from Scripture. The proponent of sodomite marriage knows in his heart of hearts that God says “No” to sodomy and sodomite marriage. That’s why he appeals to civil rights. It’s abundantly clear God does not give us the right to do what He declares is detestably wrong. (Leviticus 20:13.)
6. If God is not the source of the right, then man must be. So which man? The Founding Fathers? Hardly.
“Buggery 10. If any man lieth with mankind as he lieth w[i]th a woman, both of them hath committed abomination, they shall surely be put to death, unless the one p[ar]ty were forced or be [u]nder 14 years of age; and all other sodomitical filthiness shall be severely punished according to the nature of it.” General Laws and Liberties of New Hampshire (March 16, 1680), quoted in Colonial Origins of the American Constitution: A Documentary History 7 (Donald S. Lutz ed. 1998) (hereinafter "Colonial Origins”). Other colonies proscribed the same crime and punishment: “Touching Whoremongers. First of Sodomie, which is forbidden by this present Assemblie threwout the whole Colonie, and by Sundry Statutes of England. 25 Hen. viii. 6; 5 Eliz. xvii. It is a vile affection, whereby men given up thereto, leave the natural use of the woman, and burne in their lusts, one toward another; and so men with men worke that which is [u]nseemly, as that Doctor of the Gentiles in his letter to the Romans once spake, i. 27; The Penaltie concluded by that State under whose authoritie we are, is Felonie of death, without remedye. See 5 Eliz. 17.” Acts and Orders of 1647 [Rhode Island], quoted in Colonial Origins, at 189.
So the colonies looked to Scripture and the laws of England in establishing their own laws and rights.
7. Promoters of sodomite marriage will probably say that our colonial forefathers are not proper authorities because they established a theocracy, not the constitutional democracy we now live in. One problem with that approach is no constitution, federal or state, recognized sodomy or sodomite marriage as a right. We shouldn’t expect an abrupt discontinuity from the colonial laws at the founding of the nation. Those same colonies who criminalized sodomy (or more accurately who recognized that sodomy was a crime against God and one’s self and the community and established legal protections against it) declared themselves to be free and independent states and then entered into a compact with one another, first by the Articles of Confederation and then by the Constitution. They did not thereby usher in an age of sexual liberation, decriminalizing sodomy and elevating that sin to the status of a positive good deserving full legal recognition and protection.
8. Neither our colonial forefathers nor any framer of any other constitutional amendment or civil rights act granted a civil right to sodomite marriage. In 1986, the U.S. Supreme Court upheld Georgia’s anti-sodomy law and similar laws still on the books in 23 other states and the District of Columbia. Bowers v. Hardwick, 478 U.S. 186, 196 (1986). In the Bowers opinion, the majority cites to the anti-sodomy laws that were on the books in 1791 (the year the Bill of Rights was ratified by three-fourths of the States) and 1868 (the year the 14th Amendment to the U.S. Constitution was ratified). The years 1791 and 1868 are significant because they show that the people who ratified the Bill of Rights and the 14th Amendment were not declaring or protecting the right to commit sodomy (as if the text of those documents weren’t enough to demonstrate the total non-existence of that right). In Bowers, the U.S. Supreme Court refused to declare such a right and noted that as of 1961 all 50 states had anti-sodomy laws. The author of the Bowers majority opinion, by the way, was a Kennedy appointee and one of the two dissenters in Roe v. Wade. Thank God for him.
9. The United States Supreme Court overruled Bowers in 2003 and struck down the remaining state laws recognizing sodomy as a crime. Lawrence v. Texas, 530 U.S. 538 (2003). The Court, however, did not declare a right to sodomite marriage.
10. The supreme courts of Massachusetts (2003) and California (2008) did so based on dishonest and oracular (as Joe Sobran would say) declarations of the meaning of their respective state constitutions. See Goodridge v. Dep't of Public Health, 798 N.E.2d 941 (Mass. 2003); In re Marriage Cases, 183 P.3d 384 (Cal. 2008). The men who wrote the colonial laws, the Declaration of Independence, the Bill of Rights, and the Fourteenth Amendment would have condemned those courts not as mere tyrannical usurpers but as abominations in the mold of notorious debauched Roman emperors. These courts and their constituents mutually reinforce and promote sexual anarchy. These courts are not merely reflecting a downward societal slide. These courts and the people are locked into a suicidal kamikaze death spiral, plummeting to Gomorrah.
11. I still haven’t answered your question about what’s a civil right. An English-language dictionary gives the following definition for “right”: “9. a. A legal, equitable, or moral title or claim to the possession of property or authority, the enjoyment of privileges and immunities.” 13 Oxford English Dictionary 923 (2d ed. 1989). If you look up “civil rights” in the legal dictionary I keep at home, it says “See Civil liberties.” Black’s Law Dictionary 246 (6th ed. 1990). “Civil liberties,” in turn, means “Personal, natural rights guaranteed and protected by Constitution: e.g., freedom of speech, press, freedom from discrimination, etc.” Id. A later version of Black’s Law Dictionary defines civil rights in reference to the Bill of Rights, the 13th, 14th, 15th amendments and certain Civil Rights Acts passed by Congress. None of those authorities grant the civil right of sodomite marriage.
12. Your question reminds me of my constitutional law professor at Wabash and his definition of “due process.” “What’s due process?,” he would ask us students rhetorically. “Why, the answer is as easy as the answer to the question ‘Who is buried in Grant’s Tomb.’ Due process is the process due you.” I think of a right in the same sense. A right is a freedom to do or omit from doing something because it would be morally right to do or not to do so. These rights are so right that the law protects them from state punishment or interference. Tocqueville says, “Next to the general idea of virtue, I know of no idea more beautiful than that of rights, and, indeed it would be more accurate to say that the two ideas are indistinguishable.” Alexis de Tocqueville, Democracy in America 272 (Arthur Goldhammer trans. 2004).
13. A detailed discussion of civil rights is beyond the scope of this response and my capability. Suffice it to say that both the Founders and the Framers of the 14th Amendment made distinctions between fundamental rights, on the one hand, and political or social rights on the other. The fundamental rights protected by the 5th and 14th Amendments were life, liberty, and property. Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment 30-44 (2d ed. 1997) (Chapter 2: “Privileges or Immunities”). Of course, no rights to sodomite marriage are embedded in those amendments. No matter whether the lingo used was "privileges or immunities," "natural rights," "political rights," "fundamental rights," or "civil rights," sodomite marriage was not recognized as a right in any way, shape, or form.
14. If you see rights as they have been understood throughout American history until the modern era, then you understand that what Massachusetts and California have done is illegitimate and illegal. No court, no general assembly, no executive, no bureaucrat, no man can declare a right to sodomite marriage.
15. The modern citizen who is disinformed by his modern school, court, and church sees rights differently. First, he believes rights are not derived from any sense of moral right and wrong or virtue and vice. Rather, rights are “zones” of liberty within which the "individual" may do what he or she pleases so long as he or she does not swing his or her fist at another person's nose. This modern and defective view sees a man-made constitution, statute, or case opinion as a fountain of rights. In other words, a man has a right because another man authorized to govern said so. Thumbing his nose at our forefathers, his rich patrimony, and the Eternal God, Justice Oliver Wendell Holmes infamously said, there is no “brooding omnipresence in the sky” to give us law. Man, who has a habit of calling evil, good and good, evil, does that.
16. We haven’t even begun to discuss the fact that marriage was instituted by God. What He created and established between a man and a woman cannot be altered, rejected, or abolished by any man. So even if the U.S. Constitution were properly amended tomorrow to guarantee sodomite marriage across the fruited plain, no right to sodomite marriage would exist. Congress might as well pass a law declaring that all U.S. citizens are justified and will go to heaven when they die. All the laws in the world will not change God’s eternal decrees. At such folly, God who sits in the heavens laughs, and his wrath is soon kindled. (Psalm 2:4, 12.)
17. Sodomite marriage never was, is not now, and never will be a civil right.
18. A discriminating man used to be thought virtuous, now he’s thought vicious. The law discriminates. It always has and it always will. It makes distinctions. That’s why supreme court case law as a whole does not forbid discrimination; it forbids only invidious discrimination. The law treats similar classes similarly and dissimilar classes dissimilarly for reasons intrinsic to those classes. In Indiana, for example, there are non-felons, felons, and serious violent felons. The law treats each class differently. A non-felon may own a firearm. A serious violent felon may not.
19. Marriage is also properly the object of discrimination in the law. There is no invidious discrimination in forbidding sodomite marriage. A same-sex couple is not in the same class as a man and a woman. A man and an ape (to which the Spanish Parliament is considering extending the right to life and freedom) is not in the same class as a man and a woman, etc. Only a man and a woman may marry. If reasons intrinsic to the classes are needed, fertility vs. infertility, health vs. disease, commitment vs. radioactive libido, and God’s commendation vs. God’s condemnation should suffice.
20. Intellectuals, including progressive-thinking Christians, think that laws which do discriminate against homosexual persons (their words) are the product of atavistic hang-ups about sex and an "animus" against diverse lifestyles. ("Animus" when used by intellectuals in this context means irrational meanspiritedness.) I wish they would take one moment to charitably consider the motives of the godly dead men and women who founded this country and her laws. Those men and women knew their Bible and themselves (they practiced self-examination) far better than we know the Bible and know our own dark hearts. They knew that the law was a tutor to lead them and us to Christ. (Gal. 3:24.) They knew that Jesus "sympathize[d] with our weaknesses" and was tempted "in all things" as we are--and they were--yet He was without sin. (Hebrews 4:15.) The beginning and end of their lawbook was humble fear and love of God and love of neighbor. In this they attempted to follow in the footsteps of their Blessed Master and Merciful Savior. To Him be the glory forever and ever.