On July 31 at the American Bar Association’s International Human Rights Award Luncheon, former Justice John Paul Stevens declared that, while the Due Process Clause of the Fourteenth Amendment establishes a right to “gay marriage,” it does not protect an individual’s right to keep and bear arms.
Now when it comes to the issue of “gun rights” I have no personal dog in the hunt (so to speak). I’m not a gun owner. In most circumstances I wouldn’t recommend keeping a gun at home because I think statistically a gun kept at home is more likely to be used on someone in the home than on an intruder (though I wouldn’t want an intruder to know that I don’t have a gun at home).
Still, I marvel at Stevens’ ability to reject an application of the Fourteenth Amendment to a right clearly enumerated elsewhere in the Constitution (viz., “the right of the people to keep and bear arms” in the Second Amendment) while affirming its application to a supposed right not elsewhere even remotely alluded to in the Constitution (viz., the right of a person to marry a person of the same sex).
As Harvard-trained lawyer Brian Troyer commented, “You need look no farther to see that liberal jurisprudence has nothing to do with law or the Constitution except in the instrumental sense that when liberal judges pronounce their judgments on these issues they invoke the document as their excuse for imposing their personal policy preferences.”
In Obergefell v. Hodges Justice Kennedy, writing for the bare majority (Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan), based the case for the oxymoron that is “gay marriage” on the “due process” and “equal protection” clauses of the Fourteenth Amendment. So far-fetched was the connection that its effect was to dumb down intelligible words that have an historical context to the subjectivity of a Rorschach inkblot test or a reading of tea leaves.
The text of the Constitution now means anything that five SCOTUS justices want it to mean. That, in turn, has the quite serious effect not only of tarnishing the Court’s reputation as impartial jurists but also of eradicating Article V of the U.S. Constitution, which specifies how the Constitution may be amended: “The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution… which… shall be valid… as part of this Constitution, when ratified by the legislatures of three fourths of the several states….”
What did Kennedy and the four other lawless justices see in the Fourteenth Amendment? Its first paragraph states: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” According to the Lawless Five, “gay and lesbian persons” are being denied a “fundamental right” to marry someone of the same sex whom they love.
This rationale overlooks the obvious. Everyone has a right to be married under the definition of what marriage is. “Due process” and “equal protection” for all citizens of the United States are not denied when persons who do not meet the definition of marriage are not allowed to redefine marriage to conform to their desires. The definition of marriage as the union of one man and one woman preceded the Fourteenth Amendment and those who framed and passed the Fourteenth Amendment did so with the understanding that it in no way, shape, or form had changed that definition.
Had the framers of the Fourteenth Amendment the slightest inkling that it would make inevitable the imposition of “gay marriage,” they would have either scrapped it altogether or written in it a clause safeguarding against such abuse. Had the legislators in both Houses of the U.S. Congress and the legislators of the states had any notion that the Fourteenth Amendment would make same-sex marriage inevitable they would surely have voted against it.
Marriage is a union based on true sexual counterparts. This is not an arbitrary or narrowly sectarian concept. It is a natural law consideration, recognizing the obvious holistic complementarity between the sexes in terms of anatomy, physiology (i.e., procreative design), and even (to a large measure) psychology. For millennia a male-female prerequisite for marriage has been the single most uniformly held, cross-cultural aspect of marriage.
Logically speaking, homosexual intercourse is a self-dishonoring enterprise. It treats the sex of the participants as only half intact in relation to the sex that they already are, as though two half-males make a whole male or two half-females make a whole female. Contrast the salutary logic of a heterosexual union, where the two halves of the sexual spectrum unite to form a single sexual whole. Homosexual attraction is either narcissistic (arousal for the distinctive features of one’s own sex) or self-deceptive (failure to recognize that one shares in common the sex-distinctive features that one desires).
Moreover, it is the logic of the duality of the sexes that leads to a limitation of duality of number. It is also the logic of embodied otherness that rules out secondary forms of sameness like adult incest. A person who rejects this definition of marriage, this significance to sexual differentiation, has no basis for limiting marriage to two persons at any one time or to persons who are not close kin.
It is perhaps ironic that Justice Kennedy emphasized that “the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals.” If there is no significance to a duality of the sexes for sexual union, there can be no significance to a duality of number, for the duality of number is predicated on the duality of the sexes.
Science provides further confirmation of the wisdom of a male-female prerequisite for marriage. It is easy to grasp that the disproportionately high rates of measurable harms that attend homosexual unions are due, ultimately, to the absence of a true sexual complement, not to societal “homophobia.” Quite simply, the kinds of harms correspond to expected patterns of sexual differences.
Homosexual male activity in particular is characterized by relatively high numbers of sex partners and a relatively high rate of STIs. Homosexual female activity in particular is characterized by exceptionally low relational longevity (lesbian unions don’t last even as long as male homosexual unions on average) and higher rates of mental health problems.
What’s the mystery? Men are generally more inclined than women to seek opportunities for more sex. So don’t expect monogamy and low health risks to arise as the norm from a sexual union of males. Women have a higher set of relational expectations for meeting needs for self-worth and security that puts added stress on the relationship. So don’t expect relational longevity and mental well-being to arise as the norm from a sexual union of females. Sans a true sexual complement to moderate the extremes of a given sex and to fill in the gaps, what we get in “gay” and lesbian homosexual activity is predictable.
A handful of unelected lawless justices have acted as legislators—worse still, as amenders and thus violators of the Constitution—by imposing their ideology on the Constitution. If they can legislate so brazenly from the bench, they can just as easily claim that the restriction of marriage to two persons or to non-kin is a deprivation “of life, liberty, or property, without due process of law” and a denial of “the equal protection of the laws.”
Those who applaud the decision of these Lawless Five have given them and all future SCOTUS justices the right to define marriage as they see fit, without any inhibition based on previous universally understood definitions grounded in natural law. Indeed, those who sing the praises of the Lawless Five have given them and future justices the right to read virtually anything in the Constitution, turning this Republic into a tyrannical Oligarchy of unelected officials.
Even to give women the right to vote required the Nineteenth Amendment. It couldn’t just be imposed on the country by unelected jurors. Even the abolition of slavery, the right of due process for freed slaves, and the right to vote by freed slaves required the Thirteenth, Fourteenth, and Fifteenth Amendments.
Yet now SCOTUS justices can rewrite the Constitution to include anything they deem fit by appeal to nothing more than their own ideology. Even if you support “gay marriage,” be alarmed. Be very, very alarmed. The Lawless Five just abolished the whole concept that amending the Constitution requires a super majority in the two Houses of Congress and among state legislatures. It now only takes Five Lawless Justices of the Supreme Court of the United States to amend the Constitution. So help us God.