No right to “homosexual marriage” is found in the Constitution
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| U.S. Supreme Court building. (Photo credit: Wikipedia) |
How could various courts “discover” same-sex “marriage” in their state constitutions? Or how could it ever be decreed by any federal court or by the US Supreme Court? Only if it were invented by the judges out of their own imaginations.
Judge Richard Posner, a widely respected judge on the US Court of Appeals for the Seventh Circuit, said this in a public interview:
Nothing in the Constitution or its history suggests a constitutional right to homosexual marriage. If there is such a right, it will have to be manufactured by the justices out of whole cloth. The exercise of so freewheeling a judicial discretion in the face of adamantly opposed public opinion would be seriously undemocratic. It would be a matter of us judges, us enlightened ones, forcing our sophisticated views on a deeply unwilling population.
Three states—Maine, New Hampshire,51 and Vermont—have passed laws legalizing same-sex “marriage,” and one state, New Jersey, has created “civil unions” that are the legal equivalent of marriage. But on November 3, 2009, the people of Maine overruled the legislature and governor by enacting Question 1, restoring the definition of marriage as one man and woman in the state.
Restricting marriage to one man and woman does not violate anyone’s fundamental rights
Sometimes advocates for same-sex marriage argue that the right to marry is a fundamental human right and that this is being denied to them as homosexuals.
But the answer is that when the law defines marriage as between one man and one woman, it does not prohibit any homosexual person from marrying. They would just have to marry in the same way that everyone else in society has to marry—namely, they would have to marry someone of the opposite sex. This right is extended equally to all unmarried adults in the society.
Yet, when homosexuals claim that they want to marry another person of the same sex, they are not simply claiming the right to marry that is available to everybody else in society. Rather, they are claiming a new right that had not previously been available to anyone in this society—namely, the right to marry someone of the same sex. Such a right has been denied to everyone in the society prior to this time, so it is not discriminating against them to say that this kind of right is denied to them.
This would be somewhat analogous to a man claiming that he wanted to marry his sister and that the law was wrongfully denying him a basic human right that everybody else had, the right to marry. But that would be an invalid argument. No man in this society has the legal right to marry his sister, and no woman has the legal right to marry her brother. The law prohibits such kinds of marriage. But if no man in a society has the right to marry his sister, then when the law denies him the right to marry his sister, it is not denying him anything that it does not deny to everybody else as well. When he claims that he should have a right to marry his sister, he is really claiming the right to redefine marriage according to his own desires and preferences. He is not just claiming a private right for himself, but is claiming a right to change the definition of marriage that has been adopted by the whole society. And the law is correct when it denies him the right to do this.
The same arguments would go for a woman who claimed that she should have the right to marry her son, or a man who claimed that he should have the right to marry his daughter. And the same kind of arguments would apply to a man who claimed he should have the right to marry a woman who was already married to someone else. Or to a man who claimed that he should have the right to marry more than one wife at the same time. All these would not simply be claims that an individual would make regarding a private right that would affect no one else. These are claims to be able to redefine the institution of marriage for the whole of a society.
Another argument sometimes raised by same-sex advocates is that laws limiting marriage to one man and one woman are unconstitutional “sex discrimination” because they use gender-based classifications.
However, both the US Supreme Court and various state supreme courts have rejected this argument. According to constitutional law expert Jordan Lorence, the US Supreme Court has held that marriage laws treat men and women equally and the court has ruled that uses of gender classifications in the law are not inherently discriminatory. In addition, Lorence asserts that, based on Supreme Court precedents in Nguyen v. I.N.S. and Nordlinger v. Hahn, government programs to prevent breast cancer or prostate cancer are not discriminatory and that separate bathrooms for men and women are not “sex discriminatory.” As a result, there is no disparate impact on men or women because marriage laws treat men and women the same. In addition, the New York Court of Appeals said:
By limiting marriage to opposite-sex couples, [the State] is not engaging in sex discrimination. The limitation does not put men and women in different classes, and give one class a benefit not given to the other. Women and Men are treated alike—they are permitted to marry people of the opposite sex, but not people of their own sex.
The Maryland Court of Appeals and the Washington State Supreme Court have reached the same conclusion: Laws that limit marriage to one man and one woman are not unconstitutional sex discrimination. Lorence quotes from the Maryland court:
The limitations on marriage effected by Family Law §2–201 do not separate men and women into discrete classes for the purpose of granting to one class of persons benefits at the expense of the other class. Nor does the statute, facially or in its application, place men and women on an uneven playing field. Rather, the statute prohibits equally both men and women from the same conduct.
A marriage amendment to the US Constitution would be the most effective way to establish a uniform understanding of marriage once again in the United States
Some people have proposed an amendment to the US Constitution that would limit marriage to one man and woman. As of November 2008, thirty states had approved such amendments to their individual state constitutions.
The wording of the 2004 Federal Marriage Amendment, as introduced in both the US Senate and the US House, was as follows:
Marriage in the United States shall consist solely of the union of a man and a woman. Neither this Constitution, nor the constitution of any State, shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman.
In order to amend the Constitution, a two-thirds majority of both houses of Congress is required. The House took a vote on the amendment on September 30, 2004. The result was 227 yea votes (55%) to 186 nay votes (45 percent). Republicans voted 191-to-27 for the amendment; Democrats voted 158–36 against it. Therefore the amendment failed. A two-thirds majority would have been 290 votes.
The amendment failed in the Senate because of a filibuster by its opponents. On July 14, 2004, there was a cloture motion in the Senate that would have forced a vote on the amendment. It needed 60 votes to pass, but received only 48 yea votes to 50 nay votes, so it was 12 votes short of the supermajority needed to end debate and force the Senate to vote on the amendment. Forty-two Democrats voted against the motion, compared with eight Republicans. Therefore there is not now strong enough support for such an amendment to pass by two-thirds majority in both houses of Congress. And even if it were to pass Congress, it would then have to be ratified by the legislatures of three-fourths (thirty-eight) of the states.
But political sentiment in the United States can change over time, and it may be that sometime in the future the sentiment of the people of the nation will be strong enough to support such a measure.
The benefits of such an amendment would be that (1) it would prevent the current US Supreme Court and all future US Supreme Courts from redefining marriage as the Massachusetts, Connecticut, and Iowa supreme courts have already done; (2) it would prevent individual state supreme courts from redefining marriages; and (3) it would give a uniform definition of marriage throughout the nation rather than allowing a hodgepodge of definitions to spring up in the various states.
Such an amendment would not wrongfully violate the constitutional separation of powers between the federal government and the state governments, because neither the Congress nor the Constitution itself has ever understood such separation of powers to mean that states could completely redefine marriage in this way. In fact, in the Mormon polygamy controversy, the nation affirmed that the United States has a strong national interest in establishing a uniform definition of marriage for the entire nation. This concern was also reiterated by Congress when it welcomed Arizona into the Union and simultaneously required that the constitution of Arizona similarly prohibit polygamous marriages.
6. Objections
The primary objection brought against the view of marriage that I support in this chapter is that “Christians should not try to impose their moral standards on the rest of society.”
The first response is that attempting to persuade people that these moral standards are right and beneficial to society is not the same as “imposing” them on others. Everyone in a free society should have the right to attempt to persuade others to agree with his or her views, and that is what I am attempting to do here, arguing that for many reasons this one-man, one-woman standard is best for society.
The second answer is one I discussed in chapter 4 (pp. 117–18): The Bible presents these standards for marriage not as merely Christian standards but as the standards that come from the one true God, the Creator of the universe. They are the standards by which he will one day hold all people accountable. In that sense, I am arguing here that these moral standards regarding marriage already are the true standards that God applies to the whole society in every nation, whether or not everyone acknowledges that.
RECOMMENDATIONS ABOUT SPECIFIC LAWS AND POLICIES RELATED TO MARRIAGE
1. Marriage should continue to be defined by government for society as a whole.
I gave arguments in support of this policy in sections E and F above (pp. 221–23).
2. Laws should define marriage as a union between one man and one woman.
This would mean that laws should continue to exclude same-sex marriages and polygamous marriages, just as they have in the past.
3. Laws should make other restrictions on marriages that reflect historical and traditional standards. (These are standards that Christians also think reflect biblical moral standards.)
It is appropriate that marriage be restricted to those who have attained a certain age (eighteen in many states today) and who give their consent to be married. Marriage should also be restricted to those who are not already married, so as to protect the status of marriage as a union between one man and one woman and to prevent adulterous relationships from being considered marriage. Laws should also prohibit polygamous marriages—that is, a man who is already married to one woman would not be allowed to marry another woman at the same time.
In addition, the laws should prohibit incestuous relationships from being considered marriage. Therefore a person could not marry someone of the opposite sex in his or her immediate family, such as a brother or sister or a son or daughter. A person could not marry an aunt or uncle or niece or nephew or first cousin.
Such provisions not only reflect biblical moral standards, but also reflect the historical wisdom that such relationships are harmful rather than helpful to society.
4. Homosexual relationships should not be granted the status of “marriage.”
If a society were to grant this status, it would give governmental encouragement and endorsement to a relationship that is contrary to the moral standards of the Bible and detrimental to the raising of children. No Christian should support such a proposal.
5. It is doubtful that domestic partner benefits should be given to homosexual relationships or that they should be normalized in any way as “civil unions.”
Regarding “domestic partnership” benefits, the question is whether the society as a whole, through its government, wishes to give encouragement and endorsement to a relationship that is contrary to the moral standards of the Bible. If the members of a society wish to do this, they are of course free to do so, but it is not a proposal that Christians should support. Our standards of what is right and wrong for human conduct, and what is helpful or harmful to individuals and to society, should be taken from the Bible.
Nevertheless, if the majority of a society decides to grant such domestic partner benefits, they should not be limited to homosexual domestic partners, but should apply to all people living together in long-term relationships where there is mutual commitment and obligation to care and support each other. They should also certainly apply to an elderly sister and brother living together and caring for one another, or an adult child living with and caring for an elderly parent. These relationships should be allowed the same privileges and benefits that would be given to homosexual couples living together. And such benefits, if given, should be dependent on the couple making a legal commitment to some measure of obligation for mutual financial support and physical care if needed. Such a provision would guarantee that society receives some benefits in return for granting some privileges or benefits.
Of course, there are various kinds of “benefits” that might be granted. Domestic partner benefits with no significant financial costs to the taxpayers or to consumers are less controversial and would include things such as allowing hospital visitation rights and access to medical records. But other kinds of domestic partner benefits would involve substantial costs to taxpayers or consumers, such as coverage by a partner’s health insurance plan at work, the right to a partner’s pension plan, significant financial benefits in inheritance laws by which no tax penalty is incurred for inheriting an estate when a spouse dies, and access to a portion of Social Security benefits that have been earned by one spouse during his or her lifetime. Campaigns for this kind of benefit are primarily campaigns for monetary benefits.
The objections to giving such monetary benefits to same-sex relationships are the following: (1) These benefits were originally intended by society to encourage the bearing and raising of children in a heterosexual marriage, which is the only kind of sexual union that can produce children; (2) to give such benefits to homosexual relationships, which (by themselves) cannot produce new children, becomes a means by which society encourages other types of relationships that will not ordinarily produce children and will not raise them in the most beneficial way; (3) such benefits also confer a societal indication of approval on the relationships, but Christians should not support policies that give approval to relationships that the Bible disapproves of and considers morally wrong.
It is in fact this symbol of approval by society that is one of the major reasons behind the push by homosexuals to gain domestic partner benefits and ultimately to gain the status of marriage. To the extent that these benefits confer such endorsement and approval, and for that very reason, Christians should oppose and not support such proposals.
For the same reasons, other privileges related to marriage such as the right to adopt children should not be granted to homosexual relationships.
6. Known homosexuals should continue to be prohibited from military service.
Widespread evidence indicates that mixing active homosexual persons with non-homosexuals in the close quarters required in military service has a significantly detrimental effect on military morale and effectiveness. That alone is sufficient reason for maintaining the current policy of not allowing known homosexuals to serve in the military.
Campbell University Law Professor William A. Woodruff has stated,
The American military does not fight an armed enemy sworn to destroy our way of life by showing how enlightened and progressive our popular culture is. The armed forces exist to project combat power as an arm of foreign policy and to protect our vital national interests. Anything, whether it is height, weight, IQ, character, physical fitness, medical condition, or any other condition that detracts from unit cohesion and combat effectiveness, disqualifies an otherwise patriotic American from serving in the military. The military is not popular culture. It is very different and must remain so to defend the freedoms that advance our popular culture.
Woodruff added,
Those who favor personnel policies grounded in notions of fairness to the individual must be required to demonstrate beyond any doubt that military discipline, unit cohesion, and combat effectiveness will not be diminished one iota by adoption of their preferred policy. Otherwise, it elevates the individual over the mission, and that is the antithesis of military service.
Brian Jones, a retired US Army Ranger, testified to Congress in 2008:
As a US Army Ranger, I performed long-range patrols in severe cold weather conditions, in teams of 10, with only mission essential items on our backs. No comfort items. The only way to keep from freezing at night was to get as close as possible for body heat—which means skin to skin. On several occasions, in the close quarters that a team lives, any attraction to same sex teammates, real or perceived, would be known and would be a problem. The presence of openly gay men in these situations would elevate tensions and disrupt unit cohesion and morale.
In an open letter to President Obama, more than one thousand flag and general officers of the military wrote:
Our past experience as military leaders leads us to be greatly concerned about the impact of repeal [of the law] on morale, discipline, unit cohesion, and overall military readiness. We believe that imposing this burden on our men and women in uniform would undermine recruiting and retention, impact leadership at all levels, have adverse effects on the willingness of parents who lend their sons and daughters to military service, and eventually break the All-Volunteer Force.
7. Private organizations such as the Boy Scouts should continue to be allowed to exclude homosexuals from employment as scoutmasters.
The US Supreme Court agreed with this position with its decision in Boy Scouts of America et al. v. Dale in 2000. A majority of the court (5-to-4) agreed that the First Amendment right of freedom of association “plainly presupposes a freedom not to associate.”
The concluding paragraph of the majority opinion was very explicit in this regard:
We are not, as we must not be, guided by our views of whether the Boy Scouts’ teachings with respect to homosexual conduct are right or wrong; public or judicial disapproval of a tenet of an organization’s expression does not justify the State’s effort to compel the organization to accept members where such acceptance would derogate from the organization’s expressive message. “While the law is free to promote all sorts of conduct in place of harmful behavior, it is not free to interfere with speech for no better reason than promoting an approved message or discouraging a disfavored one, however enlightened either purpose may strike the government.” Hurley, 515 US, at 579.
8. Should homosexuals be granted the legal status of a protected class?
Certain groups have a special legal status in society, the status of a protected class of persons. This is true, for example, regarding gender and race, so that discriminating on the basis of gender or race is illegal. Should homosexuals also be granted such a special status, so that discrimination on the basis of “sexual orientation” is considered illegal? This is the force of many “gay rights” ordinances and laws in various cities and twenty-one states.
Christians should not support such ordinances, because they also have the force of giving governmental approval and encouragement to a relationship that is contrary to the moral standards of the Bible.
Deciding that homosexuals should not be considered a “protected class” in the law simply means they have the same legal status everyone else does. Homosexual men have the same status and protections as all other men in society. Homosexual or lesbian women have the same status and protections that every other woman has in society. They have these without designating them as a specially protected class in the law.
But if homosexuals are designated as a protected class, then it very quickly becomes against the law for Christians and others with similar moral standards to act in a way consistent with their beliefs. For example, if homosexuals are a protected class, then can a Christian wedding photographer decide not to provide photography services to a homosexual wedding or commitment ceremony (see above, pp. 141–42)? Or can a church refuse to rent an auditorium for the purpose of holding a homosexual marriage or civil union ceremony (see above, p. 142)?
In these and other cases, Christians are being put in the position of lawbreakers simply because they do not want to use their facilities or services to endorse a relationship that they consider morally wrong. In this way such gay rights ordinances violate the freedom of conscience of individuals in the society. Such ordinances, when they have this effect, are certainly wrong.
9. Should homosexual conduct itself be against the law?
Until 2003, some states had laws that prohibited private homosexual conduct. In fact, such “sodomy laws” existed at one point in many or all states in the United States. In 1986, the US Supreme Court, in Bowers v. Hardwick, upheld the right of Georgia to have such a law. In the majority opinion, then-Chief Justice Warren Burger wrote:
Decisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of Western civilization. Condemnation of those practices is firmly rooted in Judeo-Christian moral and ethical standards … To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching.”
But seventeen years later, in 2003, the Supreme Court explicitly overruled Bowers v. Hardwick in the case Lawrence v. Texas. In that case, the Supreme Court held that consensual sexual activity between same-sex adults is an essential freedom protected by the idea of “due process” in the Fourteenth Amendment.
Sodomy laws (that prohibited private homosexual conduct) were in several ways similar to the laws against fornication that had been on the books in various states for most of the history of the United States, but had seldom or never been enforced. And if laws prohibiting private consensual sexual acts between unrelated adults are never enforced, then it seems pointless to have such laws in the first place. As I will argue below in the discussion on laws regarding the viewing of pornography (see p. 242), there are some actions that are contrary to biblical morality but that nevertheless should not be prohibited or penalized by law. With regard to homosexual conduct, this also seems to be the consensus of a broad majority of American society at this time, probably out of a common realization that attempts at enforcement of such laws would inevitably involve excessive government intrusion into people’s private lives.
In any case, since Lawrence v. Texas, it is now considered unconstitutional to have laws against sodomy (and probably, by implication, against fornication). I see no reason for Christians to argue that this conclusion should be overturned.
Grudem, W. A. (2010). Politics according to the Bible: A Comprehensive Resource for Understanding Modern Political Issues in Light of Scripture (229–238). Grand Rapids, MI: Zondervan.
