In regards to the recent decision by the 4th Circuit Court of Appeals which asserts the position that the ban on gay marriage is unconstitutional, I have been told by more than a few folks, that while I make a very sound religious argument, I am on the wrong side of this issue. Why? Because it is not a religious matter, but rather a Constitutional one. That the Equal Protection clause in our Constitution is impossible to skirt. That perhaps eventually, the Supreme Court will make the same call as did the Fourth Circuit, and appropriately so. I was needlessly reminded, that Constitution is not a religious document, it is a civil document, and in so being, it clearly delineates civil matters.
Marriage, in the eyes of the state, is a civil contract. Marriage within the church is a religious contract, and that since we base taxation, Social Security benefits, and other decisions on marital status, the state cannot deny such status to two people of the same sex if you grant certain rights and privileges to two people of the opposite sex. It was for this profound purpose, that the Founding Fathers, with great wisdom, inserted Equal Protection language into the Constitution.
The point of creation or establishment is the point most correct and true to the intent of the designer or creator. When does the clock strike the most accurately? Immediately after being fully wound. When does the computer program operate in its most perfect parameters? Immediately upon its launch, before mal-ware and viruses and other conflicting needs interfere with its purpose. When was God’s creation perfect and unblemished? That increment of time between the point at which God declared everything to be “Good” and the moment Eve placed the forbidden fruit into her mouth. When was America’s government operating as it was intended? Those years immediately after the Constitution was established. Before the errors of subsequent generations began to alter and reinterpret the original intent of the Founding Fathers. With that in mind then, let’s examine exactly what the intent was by our Founding Fathers. What were their views on homosexuality? If this is indeed a Constitutional question, then (1) what were the views on homosexuality? and (2) If this were indeed the intent of the Constitution, why were there no debates or actions taken?
Some of the best records of that period come from military history. Decisions made in military courts often were accurate mirrors of the opinions and philosophies of the civil population, as the military culture was not as clearly established and separated from everyday life as it is today. What was the opinion of homosexuality? Let history speak for itself. George Washington, the nation’s first Commander-in-Chief, held a strong opinion on this subject and gave a clear statement of his views on it in his general orders:
At a General Court Martial whereof Colo. Tupper was President (10th March 1778), Lieutt. Enslin of Colo. Malcom’s Regiment was tried for attempting to commit sodomy, with John Monhort a soldier; Secondly, For Perjury in swearing to false accounts, [he was found guilty of the charges exhibited against him, being breaches of 5th. Article 18th. Section of the Articles of War and we do sentence him to be dismissed from the service with infamy. His Excellency the Commander in Chief approves the sentence and with abhorrence and detestation of such infamous crimes orders Lieutt. Enslin to be drummed out of camp tomorrow morning by all the drummers and fifers in the Army never to return; the drummers and fifers are to attend on the Grand Parade at Guard mounting for that Purpose.
General Washington held a clear understanding of the rules for order and discipline, and as the original Commander-in-Chief, he was the first not only to forbid, but even to punish homosexuals in the military. An edict issued by the Continental Congress communicates the moral tone, which lay at the base of Washington's actions:
The Commanders of . . . the thirteen United Colonies are strictly required to show in themselves a good example of honor and virtue to their officers and men and to be very vigilant in inspecting the behavior of all such as are under them, and to discountenance and suppress all dissolute, immoral, and disorderly practices, and also such as are contrary to the rules of discipline and obedience, and to correct those who are guilty of the same.
Noah Webster—a soldier during the Revolution and the author of the first American dictionary—defined the terms "dissolute" and "immoral" used by Congress:
Dissolute: Loose in behavior and morals; given to vice and dissipation; wanton; lewd; debauched; not under the restraints of law; as a dissolute man: dissolute company.
Immoral: Inconsistent with moral rectitude; contrary to the moral or Divine law. . . . Every action is immoral which contravenes any Divine precept or which is contrary to the duties which men owe to each other.
This meaning of the word "moral" versus "immoral" was understood throughout American society; the practice of sodomy was clearly adverse to and "contravene[d] Divine precept.” The order to “suppress all dissolute, immoral, and disorderly practices . . . contrary to the rules of discipline and obedience” was extended throughout all branches of the American military, both the Army and the Navy.
It can be safely said that the attitude of the Founders on the subject of homosexuality was precisely that given by William Blackstone in his Commentaries on the Laws—the basis of legal jurisprudence in America and heartily endorsed by numbers of significant Founders. In addressing sodomy (homosexuality), he found the subject so reprehensible that he was ashamed even to discuss it. Nonetheless, he noted:
What has been here observed the fact that the punishment fit the crime ought to be the more clear in proportion as the crime is the more detestable, may be applied to another offence of a still deeper malignity; the infamous crime against nature committed either with man or beast. A crime which ought to be strictly and impartially proved and then as strictly and impartially punished. I will not act so disagreeable part to my readers as well as myself as to dwell any longer upon a subject the very mention of which is a disgrace to human nature [sodomy]. It will be more eligible to imitate in this respect the delicacy of our English law which treats it in its very indictments as a crime not fit to be named; “peccatum illud horribile, inter christianos non nominandum” (that horrible crime not to be named among Christians). A taciturnity observed likewise by the edict of Constantius and Constans: “ubi scelus est id, quod non proficit scire, jubemus insurgere leges, armari jura gladio ultore, ut exquisitis poenis subdantur infames, qui sunt, vel qui futuri sunt, rei” (where that crime is found, which is unfit even to know, we command the law to arise armed with an avenging sword that the infamous men who are, or shall in future be guilty of it, may undergo the most severe punishments).
Because of the nature of the crime, the penalties for the act of sodomy were often severe. Thomas Jefferson indicated that in his home state of Virginia, “dismemberment” of the offensive organ was the penalty for sodomy, in fact, Jefferson himself authored a bill penalizing sodomy by castration. We don’t hear this side of Mr. Jefferson very often these days do we? The laws of the other states showed similar or even more severe penalties:
That the detestable and abominable vice of buggery sodomy shall be from henceforth adjudged felony and that every person being thereof convicted by verdict, confession, or outlawry [unlawful flight to avoid prosecution], shall be hanged by the neck until he or she shall be dead. NEW YORK
That if any man shall lie with mankind as he lieth with womankind, both of them have committed abomination; they both shall be put to death. CONNECTICUT
Sodomy shall be punished by imprisonment at hard labour in the penitentiary during the natural life or lives of the person or persons convicted of this detestable crime. GEORGIA
That if any man shall commit the crime against nature with a man or male child, every such offender, being duly convicted thereof in the Supreme Judicial Court, shall be punished by solitary imprisonment for such term not exceeding one year and by confinement afterwards to hard labor for such term not exceeding ten years. MAINE
That if any person or persons shall commit sodomy, he or they so offending or committing any of the said crimes within this province, their counselors, aiders, comforters, and abettors, being convicted thereof as above said, shall suffer as felons. And shall forfeit to the Commonwealth all and singular the lands and tenements, goods and chattels, whereof he or she was seized or possessed at the time, at the discretion of the court passing the sentence, not exceeding ten years, in the public gaol or house of correction of the county or city in which the offence shall have been committed and be kept at such labor. PENNSYLVANIA
The detestable and abominable vice of buggery sodomy, be from henceforth adjudged felony and that the offenders being hereof convicted by verdict, confession, or outlawry unlawful flight to avoid prosecution, shall suffer such pains of death and losses and penalties of their goods. SOUTH CAROLINA
That if any man lieth with mankind as he lieth with a woman, they both shall suffer death. VERMONT
Based on the statutes, legal commentaries, and the writings of prominent military leaders, it is clear that the idea of homosexuality was considered with repugnance; this is incontrovertible, with no room for differing interpretations. The issue of homosexuality being thought of as having been considered a protected right under the Constitution is self-evidently inaccurate, as the manner in which the behavior of homosexuality was handled, by the Founding Fathers and their contemporaries.
However, for the sake of discussion, let us set aside multiple millennia of recorded, indisputable history for a moment. Let us not even haggle over the Judeo-Christian foundations upon which this nation was established. Let us examine simply the legal issue itself. In every culture, every society, throughout the annals of time, the state has concerned itself with the nature of marriage. Why? Because throughout time, the nature of the state was as strong or as weak as the state of the marriages of its citizens. Despite how one may choose to believe that we came to be, as a sentient intelligent being on this planet, the one thread that was central to the tapestry that wove together the fabric of the nation states, was the union between one man and one woman. Together, in this exclusive loving relationship, offspring were created, nurtured and disciplined towards the goal of perpetuating, not only the human race, but the nation state in which they entered.
No matter how man and woman got here, it is of note that they are wholly self-contained carbon based life forms, capable of carrying out every function required to survive. They are capable of feeding themselves, protecting themselves, in many cases repairing themselves, thinking and acting for themselves. They are able to accomplish every act needed to live, but they cannot, singularly create a progeny. They are incapable of solely perpetuating the species human. For whatever designed or biologically evolved reason, the majority of all species including humans, require the participation of two biologically different members of the same species, to mate and give birth. The methods of how this is accomplished differ between said species, but the end result is, it takes two to tango, and they are biologically different in order to perpetuate the species.
Also of interest, is the fact that, again, either by Divine Design or through evolutionary stages, the humanoid child at birth is completely helpless. It cannot do a single thing for itself. Unlike most of the other creatures, which possess some limited form of instinct and the ability to act upon it, the human child is in possession of nothing more than a healthy set of lungs, to which he can alert his mother or father to his needs. This same physical helplessness is also apparent in his intellectual and emotional makeup. For whatever reason, a human child arrives into this life in need of tremendous input and support, emotionally, physically and financially from mother and his father—more so than in any other creature.
Why does a nation state have such a stake in the marriage institution? Because by whatever design force one wishes to subscribe to, the product of human conception is the most healthy, physically, mentally, emotionally and financially, when raised by a father and a mother in a sexually exclusive relationship. There are miles of paper and billions of statistical abstracts and anecdotal data, which support this unequivocally. The healthier the state of marriage is amongst the citizenry, the stronger and more prosperous the nation state will be. That is why the notion of “Shotgun Weddings”, though hillbilly sounding, were, in actuality, beneficial to society. It preserved the child by giving them a father and a mother and the protections thereof. It also protected society economically, as again, statistics demonstrate that a two-parent home requires fewer financial resources from the state.
The ash heap of history is filled with the dust of civilizations that failed to maintain the protective wall around the institution of marriage, and I fear this cavalier approach of validating everyone’s chosen form of relationship as “special” will only succeed in making none of them so. If that occurs, then the basic foundation which marriage was to bring in the first place, structure, stability and security to children, will forever be lost, as will the children forced to grow up within the hellish realms of this brave new world. It may take some time to realize the unintended consequences of legislative actions, but the legal decisions of one generation, will dictate the architecture of the next generation, and ultimately a nation state will either prosper or perish by those decisions. We see today, the fiscal consequences of the absent 61.5 million citizens that Roe v Wade has brought.
In elevating gay marriage to a level of equal stature with traditional marriage, you invariably cause both to descend to a lesser level. We know from history and human nature, that once this new definition is obtained, there will be numerous other parties charging the gates, desiring to redesign and redefine marriage to the point that marriage will simply be a Rubik’s Cube of mix and match relationships twisted and contorted by whatever legal hand is holding the reins of power at the time. There will be chaos and ultimately, it will be the children who will yet suffer more for unbridled lusts and passions, than they already have thus far.
The arguments put forth by supporters of the same-sex agenda, are specious at best. Attempts to argue them from a Constitutional point of view, as intended by the Founding Fathers, is simply not supported by history. The present day consequences are as haphazardly addressed, as were the alleged values we would all benefit from, once The Affordable Healthcare Act went into play.
Call it what you wish, dress it up however you can, this is simply yet another method of increasing a political power base by once again, legislating morality by authorizing sin. Just as the abortion rights cause of 1973 did, this cause will destroy the already tenuous fabric of our society, and will cause tidal waves of disruption from the boulder dropped into the pond of proper domestic matrimony. The end is known. It is simply the amount of physical, financial and emotional carnage that will follow, which is left to speculate upon.