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

Legislating Morality

Being a lifelong fan of football, I have never had a problem with NFL instant replay. I’m in my early forties, so I can remember well the days before instant replay. Whatever the shortcomings of instant replay—and there were some significant ones in the early days—to me, the benefit of the official getting the call right always trumped any inconvenience that might result from a video review of a play.

Unsurprisingly, I find that most NFL fans approve of replay—especially when it is their team on the wrong end of a bad call. Don’t we all wish that there was an “instant replay” for life—a chance for an “official review” always to get things right?

Of course, “getting it right” means that there is a standard, much like the rules in the NFL, to which we all are (or should be) held. Despite notions to the contrary, as we argue and debate the issues of our day, ultimately each of us relies on such a standard, or some notion of right and wrong, or fair play, or rules, or morality, or whatever you want to call it.

What’s more, the very foundation of our government depends upon such a notion. In fact, the foundation of any good government, culture, society, or virtually any situation where human beings interact with one another rests upon what used to be called Natural Law.

Our Founding Fathers understood this well. However, the idea that liberty, good government, and just laws have their roots in Natural Law, or “the Laws of Nature and Nature’s God,” did not begin with the founding of America. For millennia many philosophers, politicians, priests, and lay people alike knew the role that Natural Law should play in the “Governments [that] are instituted among men.”

Jim Powell, Senior Fellow at the Cato Institute and an expert in the history of liberty, credits the Roman philosopher and statesman Marcus Tullius Cicero (106 B.C. to 43 B.C.) with expressing the “principles that became the bedrock of liberty in the modern world.” Cicero was the leading lawyer of his time, and Thomas Jefferson credits him not only with influencing the Declaration of Independence, but also with informing the American understanding of “the common sense” basis for the right of revolution.

“True law,” as Cicero called it, is the “one eternal and unchangeable law [that] will be valid for all nations and all times, and there will be one master and ruler, that is God, over us all, for he is the author of this law…”

“[The] Law of Nature” wrote English philosopher John Locke (who also profoundly influenced our Founders), “stands as an eternal rule to all men, legislators as well as others. The rules that they make for other men’s actions must…be conformable to the Law of Nature, i.e. to the will of God…”

Sir William Blackstone, another renowned and favorite English jurist of our Founders, declared in his presuppositional basis for law that, “These laws laid down by God are the eternal immutable laws of good and evil…This law of nature dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe, in all countries, and at all times: no human laws are of any validity if contrary to this…”

C.S. Lewis concludes that, “Natural Law or Traditional Morality [whatever one chooses to call it]…is not one among a series of possible systems of value. It is the sole source of all value judgments. If it is rejected, all value is rejected. If any value is retained, it is retained.”

Throughout the early colonies, the incorporation of Natural (or “Divine”) Law was prevalent. The Fundamental Orders of Connecticut (the first constitution written in America), as well as similar documents in Rhode Island and New Haven, specifically mentioned that their civil law rested upon “the rule of the word of God,” or “all those perfect and most absolute laws of His.”

References to, not vague religious babble, but specific biblical texts, such as the Ten Commandments, can be found in the civil law of every original U.S. Colony. It is a fact of history that throughout our pre-Colonial, Colonial, Revolutionary period and beyond, America’s lawmakers and laws were steeped in Natural Law.

Thus we can conclude that from the beginning our government has been “legislating morality.” All law is rooted in morality. “Laws without morals are in vain,” said Ben Franklin. Not only that, but as I implied above, every debate we have is rooted in morality.

It is absurd and ignorant to lament conservative Christian efforts when it comes to abortion, marriage, and so on as some attempt to “legislate morality.” The other side is attempting the very same thing! In fact, the lamenter (whatever his political persuasion) has also taken a moral stand. Thus, he is like the bank robber who calls the police because his get-away car gets stolen.

What’s more, those who attack Natural Law (because an attack on a position that stems from Natural Law is an attack on Natural Law) do so with arguments that are derived from Natural Law. It is a self-defeating effort. They are attempting to saw off the limb upon which they are sitting.

As Lewis puts it, “The effort to refute [Natural Law] and raise a new system of value in its place is self-contradictory. There never has been, and never will be, a radically new judgment of value in the history of the world. What purport to be new systems or (as they now call them) ‘ideologies,’ all consist of fragments from [Natural Law] itself, arbitrarily wrenched from their context in the whole and then swollen to madness in their isolation, yet still owing to [Natural Law] and to it alone such validity as they possess.”

Sadly, recent examples of such nonsense come not from Democrats or their liberal friends in the media, but from self-described “Orthodox Christians” within the GOP. Michigan GOP representative Justin Amash recently complained that “We can't legislate morality and force everyone to agree with us.” It appears that Amash was trying to impress John Stossel and his gathering of a “thousand young libertarians.”

Stossel likes the fact that “Amash focuses on government spending.” In addition, conservative author Arthur Brooks implores republicans to focus on “improving the lives of vulnerable people” through the appropriate conservative policies instead of “imposing an alien ‘bourgeois’ morality on others.”

Libertarians and their like-minded friends want to focus on government spending or conservative fiscal policies, but they often fail to realize that one does not leave morality at the door when entering the realm of economics. If you want to make the moral arguments in favor of proper (“right and good”) economic policy (which, of course, are ultimately based in Natural Law), then you must accept the other moral conclusions (killing a child in the womb is wrong; marriage is only between a man and a woman) that go along with them.

In other words, it is folly to make moral arguments in favor of sound fiscal policy, all the while turning a blind eye toward killing children in the womb or the evils of homosexual behavior.

(See this column on American Thinker.)

Copyright 2013, Trevor Grant Thomas

At the Intersection of Politics, Science, Faith, and Reason
www.trevorgrantthomas.com