VOL. 15, NO. 3

April 15, 2013

Back to the Basics:  Straightening Up
America, III:  Marriage Mayhem

By Virginia Armstrong, Ph.D., National Chairman

“Traditional marriage has been around for thousands of years. Same-sex marriage is very new. . . .  You want us to step in and render a decision based on an assessment of the effects of this institution which is newer than cell phones or the Internet?”  (U.S. Supreme Court Justice Samuel Alito during oral arguments before the U. S. Supreme Court) His question raises only one of a multitude of objections to constitutionalizing (granting constitutionally-protected status to) same-sex marriage. The high Court recently heard oral arguments in two cases that focus on this issue and that exert the most ferocious pressure imaginable on America — pressure forcing our Constitution and culture to bend over even farther backwards to the breaking point. These cases challenged the definition and concept of “marriage” under both national law and the U.S. Constitution (USA v. Windsor) and California state law (Hollingsworth v. Perry).

They force us to continue asking, “How far can you make a man bend over backwards before he breaks?” This anguished cry was heard in one of the most widely acclaimed musical productions of the Twentieth Century, “Fiddler on the Roof.” And it is the thought with which we have begun our latest Court Watch Briefings. We are asking, “Has America bent over backwards too far in its spiritual, moral, and constitutional life — too far from our Constitution and its Judeo-Christian roots? Are we, like Tevye, the tortured father who cried this question in “Fiddler on the Roof,” on the verge of breaking — at least in the sense of losing our internal vigor and our global power — and in sore need of “a fundamental straightening up process”?

The current same-sex marriage cases trumpet this question in unparalleled fashion in America’s Culture War and require that we continue to go “back to the basics” if we are to avoid toppling over backwards and stand straight again. The “Basics” received little to no attention in the Windsor and Hollingsworth oral arguments before the Supreme Court. Instead, the Court focused on technical and, often, court-contrived standards/doctrines such as “standards of review” (e.g., “rational basis test “and “heightened scrutiny”), “suspect and quasi-suspect classes,” and “standing to sue.” In sharp contrast, the “Basics” central to the debate include American constitutional law in broad perspective, Anglo-American jurisprudence (legal philosophy), general philosophy, and religion/theology.  These are realms of life and thought which pro-homosexual rights activists and some Justices pretend to ignore in order to be “neutral, constitutional,” etc. but about which Justices have already made up their minds — providing the unarticulated foundations upon which the oral arguments actually heard are based.

These central, unarticulated issues constitute a vital portion of the “Western Legal Tradition” which law professor Harold Berman asserted thirty years ago is in danger of collapsing. As we discussed in our last “Briefing,” Berman argues that the Western legal tradition, essential to all of Western civilization, was characterized by ten qualities, six of which “have been severely weakened in the latter part of the twentieth century, especially in the United States, threatening to collapse the entire tradition.” America’s constitutionalizing of same-sex marriage would strike another deadly blow at this tradition, which we shall narrow for purposes of our study to the “Anglo-American legal tradition.” This is obvious as we consider a second legal tradition characteristic and the reeling blow it would suffer from constitutionalization of same-sex marriage.

This characteristic concerns the sources and growth of “Law.” The Anglo-American legal tradition viewed the law of today as having its sources in the law of the past. These sources include not only what would be generally recognized as “law” — “legal rules, institutions (e.g., specific courts, ‘laws,’ and legal processes),” but also a “meta-law.” This consists of legal scholars/scholarship who/which analyze(s) and evaluate(s) in a non-official capacity that which is officially “the law.” Inseparably intertwined are also those deeper and broader realms of thought and life on which the generally recognized “law” is based. The “broader realms of thought and life include “legal and law-related values, concepts, and ways of thought” — i.e., legal philosophy, general philosophy, and even religion/theology. “Law” thus has its own history and capacity to grow over a long period of time from roots in the “law” and inseparably law-related arenas.

This view of the sources and growth of “the Law” is consistent with the Judeo-Christian worldview and the Constitutionalist theory included in this worldview. The pro-same sex marriage position, however, is clearly a Humanistic position, including the Reconstructionist approach to the U.S. Constitution. Remembering Berman’s dire warning that our legal tradition has “been severely weakened” and is “in danger of collapsing,” let us summarize the Anglo-American legal tradition’s position on same-sex marriage. We begin with the specific “laws, legal institutions, and legal processes” which constitute the generally-recognized “law.”

To do so, we must focus on the tradition’s handling of “sodomy,” as sodomy is a central feature of same-sex marriage; and same-sex marriage was so inconceivable as to not even be seriously considered in American law before the twenty-first century. Two very recent top court decisions give us an overview. In 2003, the U. S. Supreme Court threw out state sodomy laws (Lawrence v. Texas). This decision opened the door for what happened just a few months later in that same year — Goodridge and Others v. Department of Public Health and Another. Here the Massachusetts Supreme Judicial Court legalized same-sex marriages in that state. Both of these decisions delivered smashing blows to the Anglo-American legal tradition. But one slightly earlier case, Bowers v. Hardwick (1986), stood squarely in our legal tradition in upholding state sodomy laws but was over-turned by the anti-tradition Lawrence ruling.

Given the essential nature of law’s history to the legal tradition today, what did our legal tradition in 1986 — and earlier — say about sodomy/same-sex marriage? The First and Fourteenth Amendment guarantees of “liberty” (the “Due Process” Clauses of both provisions) and “equal protection of the laws” (the Fourteenth Amendment’s anti-discrimination guarantee), are the constitutional focus of today’s debate. Sodomy was criminalized by all 13 States when they ratified the Bill of Rights (1789) and by 31 of the 37 states when they ratified the Fourteenth Amendment (1868). By 1961, all 50 states outlawed sodomy.

English Common Law’s opposition to sodomy goes to the bottom of the tradition’s taproot. This progenitor of American law criminalized sodomy as early as 1533. And Sir William Blackstone, the late Eighteenth Century commentator foundational to American law, was quoted by Chief Justice Warren Burger in his concurrence in the Court’s Bowers decision: “[sodomy is] ‘the infamous crime against nature,’ an offense of ‘deeper malignity’ than rape, an heinous act ‘the very nature of which is a disgrace to human nature,’ and ‘a crime not fit to be named.’”

As for same-sex marriage, the situation was aptly summarized in the recent Court hearings by Justice Anthony Kennedy: “We have 5 years of information to weigh against 2,000 years of history, or more . . . the problem with this case is that you’re really asking . . . for us to go into unchartered waters. . . .”  The “charts” that do exist show public support for the Anglo-American legal tradition. Besides California and the national government, 40 states ban performance of same-sex marriage in their jurisdiction. The Alliance Defending Freedom, a premier public interest litigation group supporting the Judeo-Christian worldview, has won approximately 75% of its cases defending state protection-of-marriage measures. In 2011, an ADF-commissioned national survey by the nationally-known firm of Public Opinion Strategies found that 62% of Americans agree with this statement: “I believe marriage should be defined ONLY as a union between one man and one woman.”

These facts about the most visible “laws, legal institutions, and legal processes” of the Anglo-American legal tradition provide only a glimpse of the total picture of the tradition’s support for the continued definition in American law of “marriage” as only the “union of one man and one woman.” At the very least, to attempt to alter this definition is, among many dangers, against “human nature” (Blackstone). Or, as Chief Justice John Roberts declared in the recent Court hearings, “The institution [of marriage] developed to serve purposes that by their nature did not include homosexual couples [italics added].” If the pro-homosexual rights forces win, that which is natural to the human race — marriage — is destroyed, and our venerable Constitution and legal tradition are slammed by Humanistic forces wanting to reconstruct American law and society on an anti-Judeo-Christian foundation.

Virginia Armstrong pictured with her Spring 2013 High School Homeschool class

Virginia Armstrong pictured with her
Spring 2013 High School Homeschool class