How the Founders Would View Same-Sex Marriage

In the ongoing debate on the definition of marriage, I have made it clear more than once that both sides are making a moral argument, and it is futile for anyone to decry the “legislating of morality.” I have also made it clear that, whether the issue is marriage or homosexuality, and whether one appeals to Scripture, Natural Law, or science, the morally superior position lies with the conservative Christian views on these matters.

When I ask a liberal upon what moral authority he relies when he reaches his pro-homosexual/same-sex marriage conclusions, inevitably the answer is the U.S. Constitution. No doubt, throughout our history, in order to further the pagan liberal agenda, liberal jurists have “interpreted” the U.S. Constitution nearly beyond recognition.

Thus, displays of the Ten Commandments on public property are ruled to violate the Constitution, while businesses peddling pornography are seen to be protected by it. When ruling on a matter pertaining to the Constitution, courts ultimately will rely on the words and deeds (though often rather selectively) of our Founders as evidence to the correct interpretation of the words of the Constitution.

One would have to have been raised by squirrels (or be a cast member of an MTV reality program) to be an adult in the U.S. and not at least have heard of the “Separation of Church and State.” In declaring government religious (mainly Christian) expression unconstitutional, the courts refer to the First Amendment, and they interpret that amendment through the words of Thomas Jefferson in a letter that he penned to the Danbury Baptists, which declared “a wall of separation between Church and State.”

For over 70 years, time and again U.S. courts, including the U.S. Supreme Court, have referenced Jefferson’s “Wall” in order to restrict religious (almost exclusively Christian) expression in America. Thus, as we weigh and debate marriage in the U.S., it would be an ironic travesty not to consider the words and deeds of our Founders as we draw our legal conclusions.

I submit (with sad and stunning trepidation that such a submission is even necessary) that not one single Founder would give the notion that marriage is anything other than the union of one man and one woman more than a half-second’s thought before (rightly) concluding that such an idea is either a terrible joke or spoken by a lunatic.

First of all, forget marriage; the idea that homosexuality should be considered normal and acceptable behavior would be deemed a wicked and ridiculous conclusion by our Founders. Under British law, sodomy was a capital crime. Sir William Blackstone, as I noted recently, was a favorite English jurist of our Founders, and his Commentaries on the Laws of England served as the basis of legal jurisprudence in America.

As David Barton remarks, “In addressing sodomy (homosexuality), [Blackstone] found the subject so reprehensible that he was ashamed even to discuss it.” Nevertheless, Blackstone declared:

“What has been here observed…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]…A taciturnity observed likewise by the edict of Constantius and Constans: …(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).

“THIS the voice of nature and of reason, and the express law of God, determine to be capital. Of which we have a signal instance, long before the Jewish dispensation, by the destruction of two cities by fire from heaven: so that this is an universal, not merely a provincial, precept.”

Following the same moral precepts, each of the original 13 colonies treated homosexuality as a serious criminal offense. Jefferson himself authored such a law for the state of Virginia, prescribing that the punishment for sodomy was to be castration. (You think modern courts will look to this for guidance?)

New York’s law read, “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.”

Connecticut’s law read, “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.” Georgia’s law (surprisingly—at least for today’s liberals) did not call for the death penalty, but stated, “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 th[is] detestable crime.”

General George Washington dealt, at least once, directly with the issue of homosexual behavior in the Continental Army. A lieutenant Enslin was tried and convicted of attempting to commit sodomy with John Monhort, a soldier. The ruling declares, “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.”

Liberals should not bother with the “but the Founders supported slavery” argument. First of all, many Founders did not support slavery, and it was hotly debated at our founding and beyond. (Also, it should be noted that it was Bible-believing Christians who led the abolition movement.) This is certainly not the case when it comes to homosexual behavior. Secondly, one can’t appeal to the Founders only when it is convenient.

It is also noteworthy that the due process clauses of the Fifth and Fourteenth Amendments (the Fourteenth Amendment being ratified in 1868) did nothing to prevent all 50 U.S. states, including each state that entered the union after 1868, from enacting laws against homosexual behavior. As recently as 1962, sodomy was a felony in every state in the U.S.

In other words, for nearly 200 years and without any Constitutional conflictions or any serious debate, homosexual behavior in America was seen as immoral and therefore illegal. Thus, we see that the Founders do nothing but support the traditional (biblical) view of marriage.

(See this column on American Thinker.)

Copyright 2013, Trevor Grant Thomas

At the Intersection of Politics, Science, Faith, and Reason

Trevor and his wife Michelle are the authors of: Debt Free Living in a Debt Filled World

tthomas@trevorgrantthomas.com