An Assault on the Natural Rights of Children
Mankind owes to the child the best it has to give.
— Declaration of the Rights of the Child, United Nations, 1959 1
“Human rights are inscribed in the hearts of people;
they were there long before lawmakers drafted their first proclamation.”
– Mary Robinson, former United Nations High Commissioner for Human Rights 2
Summary: This article shows that ‘gay marriage’ is an assault upon the natural rights of children. After discussing marriage and its importance, it shows that marriage is distinct from friendship. The article outlines the various types of marital relationships as well as noting the teaching role of law. Finally, it analyzes the various arguments that jurists offer in support of legalizing gay marriage and shows why their reasoning is fallacious. It provides a rational defense of marriage between one man and one woman to secure the natural justice due children.
Children are the most vulnerable members of the human family, and they continue to have their legal status diminished in most Western nations. No fault divorce reduced the stability of marriage and the protection it affords children. Abortion laws indicate that we place little value upon the life of a pre-born child who may be exterminated at the whim of its mother and doctor. 3 Arguments for gay marriage continue this assault upon the natural rights of children.
The existence of the human species depends upon the relationship between a man and a woman. In other words every child born into the world has one father and one mother. This is a fundamental biological fact of nature irrespective of any legal spin by the judiciary. It is true a woman may give birth to a so-called test tube baby, but the test tube is not the father. The sperm that fertilized the ovum had to come from a man who is the child’s actual biological father. This biological relationship is written in the DNA of every cell of the child’s body.
A marriage between a man and a woman is a life-celebrating event with the promise of new life arising from the marriage union. It affirms the future and rejoices in the inherent value of human existence. It recognizes that neither all men nor all women alone are able express the fullness of human existence. The union between one man and one woman is a natural unity of being that alone is capable of creating a new member of the human family. Apart from this unique union, the human species would cease its existence. Their marriage is a commitment together in the service of life and the joy of contributing to the future of humankind. In its life-giving fullness, a man and a woman transform into something new; they become a father and mother. This is not a narcissistic relationship of economic and sexual self-gratification. It is a creative act of loving self-sacrifice, affirming the value of life over death and children over the extinction of the human race.
Historically, this unique relationship between a man, a woman, and a potential child has been afforded legal protection. When the baby is born, it is helpless and requires nurturing, education, and socialization for up to 20 years or more. Furthermore, a child has a natural right to know and to be reared by its own natural parents. 4 Or to put it another way, the parents have a natural duty to care for their child’s physical, social, educational, and spiritual needs. These natural rights and duties precede any state legal apparatus to support and enforce the natural obligations of the parents toward their child.
True justice supports the natural rights of a child and enforces the duties of its parents. If a state were to enact a law opposing these natural rights and duties, it would be a law violating natural law and would be a perversion of what human law ought to be. In reality it would be a law not binding upon the human conscience.
Traditionally, marriage law has recognized its role in protecting the health of potential children, so, typically, there are pre-marital legal restrictions for those who choose to be married.
- Medical health tests, such as, testing for various venereal diseases, are often required by state governments before a marriage license may be issued.
- Mental health requirements are a factor. A person may not be insane or otherwise mentally incompetent.
- Biologically related individuals may not be married. For example, most states do not permit marriages between fathers and daughters, sons and mothers, first cousins, etc. These relationships are considered incestuous and are prohibited.
- A minimum age requirement may be necessary to secure a marriage license. The purpose of this requirement is to assure that the marital partners are sufficiently mature to care for the needs of a potential child. It also serves to protect a young girl from becoming pregnant. Early age pregnancies present serious health issues for both the baby and young mother. 5
These restrictions show that the state has an interest to protect the health of a potential child who may result from granting a marriage license. If marriage did not entail the protection of potential children, why is syphilis testing required, and why do many state governments prohibit kinship marriage?
An infected pregnant woman has about a 40% chance of having a stillbirth (syphilitic stillbirth) or giving birth to a baby who dies shortly after birth. A baby born to a mother with either untreated syphilis or syphilis treated after the 34th week of pregnancy has a 40% - 70% chance of being infected with syphilis (congenital syphilis). An infected baby may be born without symptoms but may develop them within a few weeks, if not treated immediately. These signs and symptoms can be very serious and include skin sores, a very runny nose, which is sometimes bloody (and infectious), slimy patches in the mouth, inflamed arm and leg bones, a swollen liver, anemia, jaundice, or a small head. Untreated babies may become retarded or may have seizures. About 12% of infected newborns will die because of the disease. 6
SEC. 6. No insane person, idiot, or person who has been afflicted with syphilis or gonorrhea and has not been cured of the same, shall be capable of contracting marriage. 7
Individuals who are biologically closely related may not be married. Again, this prohibition is to protect the potential children of marriage from genetic maladies.
SEC. 3. No man shall marry his mother, grandmother, daughter, granddaughter, stepmother, grandfather's wife, son's wife, grandson's wife, wife's mother, wife's grandmother, wife's daughter, wife's granddaughter, nor his sister, brother's daughter, sister's daughter, father's sister, or mother's sister, or cousin of the first degree.
SEC. 4. No woman shall marry her father, grandfather, son, grandson, stepfather, grandmother's husband, daughter's husband, granddaughter's husband, husband's father, husband's grandfather, husband's son, husband's grandson, nor her brother, brother's son, sister's son, father's brother, mother's brother, or cousin of the first degree. 8
Legal responsibility for a child is best assigned when marriages do not overlap. Hence, one marriage ought to be dissolved before another one is established. If a woman had two husbands simultaneously and conceived a child during this time period, the paternity of the child would be uncertain. Before modern molecular biochemistry, this regulation was especially pertinent. Now, since polymerase chain reaction (PCR) allows DNA testing for paternity, the legal paternal responsibility of a child can be definitively determined postnatally. Nevertheless, this law’s purpose is to protect the rights of potential children to have an unambiguous heredity and to teach the citizenry that marital and parental obligations are to be clearly defined and not to be taken casually.
SEC. 5. No marriage shall be contracted whilst either of the parties has a former wife or husband living, unless the marriage with such former wife or husband shall have been dissolved. 9
These pre-marital regulations would be intrusive and unnecessary, if a friendship were equivalent to a marriage. Family members ought to be very loving friends, but this does not entail they have the right to be married. If it were a fundamental right that every person has the right to marriage anyone of his or her choice — as claimed by many homosexuals and justices — then a 21 year-old son ought to have the legal right to marry his biological mother.
Certain limitations are rationally necessary to protect the rights of potential children. Those who assert that the right to marry arises because of an intimate relationship between individuals ignore the very purpose of marriage law and the legal rights of potential children for whose protection those laws exist. Notice how these jurists ignore the fundamental basis of marriage as if the state had no rational interest to protect its youngest citizens.
Instead, the primary purpose of marriage law — to support a committed union of two persons who share intimacy and economic resources — is undermined by the exclusion of same-sex couples. 10
First, from each of their diverse perspectives, Amici all have come to understand that denying lesbians and gay men the fundamental right to marry the partner of their choice is profoundly wrong - just as wrong, and wrong in many of the same ways, as prior denials of marital equality on the basis of race, religion, and sex.
… the exclusion of lesbian and gay couples from civil marriage lacks a rational relationship to any legitimate government interest. 11
Friendship is an important social relationship. However, the state does not have a compelling interest to institutionalize friendships between two or more individuals. A friendship may be temporary or long lasting. It may be between members of the same or opposite sex. Friends may be younger, older, or the same age. The love between some friends may be deeply emotive while other friendships may result from some temporary mutual benefit. According to Aristotle, the best friendships are those based upon shared virtue.
Suppose it were the duty of state government to regulate and license friendships. What objective requirement would have to be met before the state would issue a friendship license? Should government legalize a friendship based upon a deep mutual love between two individuals? How would the government know when there was sufficient love between individuals to grant a state license? Would a person be allowed multiple friendship licenses or would multiple friends share one license? What legal process would be required to terminate a legal friendship? What duties would others have towards those who possessed a state licensed friendship? Would employers have to extend employee benefits to an employee’s friends? Wouldn’t friendships be more complicated because they were burdened with intrusive governmental regulations?
Law Teaches and Enforces
Good law has a positive role in that its objective is to enable human beings to flourish together in a community. It seeks the common good of all members of society. To accomplish its role in society, it stands both as teacher and as police officer. Because we think primarily of the law’s police function, we often don’t appreciate its importance as a teacher of virtuous behavior.
It is impossible for a state to enforce compliance to all its laws by all of its citizens all of the time. If it were required that all laws had to be always enforceable before they could be enacted, there would be no — or very few — laws today. For example, there are many traffic laws, but that does not mean that every street and every intersection has to have a police officer always present to make sure that every traffic violators is apprehended. The government is not able to enforce all of its traffic laws all of the time. Nevertheless, even though it cannot punish all of those who violate its speed limits, the laws teach its citizens to drive at safe speeds upon its roadways. The rationale for speed limits is the value that society places upon the preservation of human life.
The pedagogical function of law tells us why the law is rationally necessary. Whereas, the police function of law states what the law is and does not care why a person violated it. A virtuous person obeys the law because he understands rationally why the law ought to be obeyed. Often lawmakers and judges fail to appreciate the fact that law’s primary function is to teach the virtues of justice and the common good. Too often they force upon the community laws contrary to the community’s sense of right and wrong without adequately showing why a law is rationally necessary for the common good of the community. It is important to ask questions, “What is the law teaching?” Is it teaching virtuous behavior? Does it serve the common good? What lessons will children learn?
A monogamous marriage is the union between one man and one woman. In this relationship, the potential children have a clear hereditary history, and the natural parental duties can be unambiguously assigned to the biological parents. Importantly, the offspring of a monogamous marriage have the benefit of the undivided allegiance of both marriage partners.
Furthermore, the natural ratio of female to male births is almost exactly one to one. This mathematical ratio between the sexes is optimum for monogamous marriage. It is nature’s way to allow for every man and woman to enjoy the personal fulfillment of marriage and children. Polygamous and polyandrous marriages would unbalance this natural ratio between men and women.
A polygamous marriage is the union between one man and multiple women. In this relationship, the potential children also have a clear hereditary history. The parentage and the attending responsibilities can be clearly assigned too. However, a child does not have the benefit of the undivided care of each of the marriage partners. Naturally, a mother bestows more care upon her own biological children than she would upon another mother’s children. This leads to maternal competition where a mother seeks to bestow the marriage’s limited resources upon her own biological children at the expense of the other children. Often this leads to friction and disharmony within the marriage relationship, and the children don’t have the same mutual trust and devotion towards each of the women in the marriage relationship.
A polyandrous marriage is the union between multiple men and a single woman. In this case, the potential children don’t have a clear hereditary history, and the father could be any one of the men in the marriage relationship. Also, a father would tend to favor his own biological children over the children of other men, resulting in unhealthy favoritism and competition within the family.
Bisexuality involves at least three spouses to fulfill their sexual preference. The arguments for homosexual marriage are equally supportive of bisexual marriage and other polyamorous relationships.
A homosexual marriage is not really a marriage in the true sense of the word. At best, it is a committed friendship between persons. Although marriage and friendship are important human relationships, they are distinct and should not be confused with the marital relationship. Same-sex activity is always biologically sterile and never able to procreate a new life. Consequently, the state has no compelling interest to preserve same-sex friendships.
Furthermore, many individuals enjoy loving, committed friendships and do not engage in sexual activity. These friendships are certainly as worthy as homosexual friendships. Or, does the judiciary deem friendships entailing homosexual acts are more worthy of state affirmation? Again, what rational and objective criteria should the state use to determine who should be issued a license to legalize their friendship? Are claims of loving emotions between individuals a sufficient rationale for a state to grant a license? Is there an objective measure of loving feelings? What state interest is served by legalizing friendships?
In the case of an adult heterosexual couple, there is the potentiality of a child being born who will require nurturing, education, and socialization for many years. Objectively, the state grants a license to adults who have attained a particular age and who are of the opposite sex. These criteria are not based upon subjective feelings that may exist between these individuals. The state’s interest is clear too. It has a duty to protect the potential and actual interests of its most vulnerable citizens, the children.
Law Cooperates With Nature
Human beings are rational creatures who ought to conform their behavior rationally to human nature. Brute animals, on the other hand, are irrational creatures whose behavior is ordered genetically and instinctively. For example, an aggressive male lion often destroys the pride’s cubs when he defeats the aging patriarch. The young male lion’s behavior is instinctive and lacks moral consideration for the well being of the helpless cubs. In contrast, human beings have a moral sense of right and wrong, so the unjustified killing of children ought to be morally appalling.
When we consider human nature rationally, it is self-evident that the human body serves many useful purposes. The eyes are for the wonder of seeing and blindness is something to be avoided. Hearing music is gratifying and inspiring to the soul, while deafness is a tragic loss. Our hands are intricately designed to accomplish the most versatile manual tasks. And, our sex organs are beautifully ordered for the purpose of procreation and sexual satisfaction. Finally, the digestive system allows our bodies to obtain the necessary nutrients from the food we eat.
It is irrational to use our body in ways that are contrary to its natural purpose. We ought not to cut off an arm and roast it for dinner, nor should we remove our eyes because we dislike their color. Furthermore, it would be contrary to rationality to legalize activity that is itself contrary to human nature. Therefore, it should not be legally permitted to eat one’s arm. Of course, if a person had legal sovereignty over his body, then it ought to be legal for a person to mutilate his body as he sees fit.
However, a law legalizing bodily mutilation would teach the state’s citizens that a human body may be used contrary to its naturally intended purpose. If the rational consideration of human nature offers no guidance to moral behavior, then every form of behavior ought to be logically permitted.
Biologically, the human sex organs are perfectly suited for procreation, sexual gratification, and the bonding of marital partners. The attendant sexual pleasure encourages the activity that yields progeny for the perpetuation of the human race. Without the sexual drive between members of the opposite sex, the human race would quickly cease its existence.
The sexual activity between a man and a woman is inherently good and according to the rational consideration of human nature. However, when the potentiality of children is taken into consideration, the sexual activity should occur only between partners who have a mutual commitment to one another to nurture any children to adulthood. It is a state’s legitimate duty to protect the marriage and the interest of any children who may arise from their sexual activity.
Traditionally, the man and woman invite their family and friends to celebrate their public commitment to one another. This celebration notifies other members of the community that they have formed an exclusive sexual commitment to one another. On the other hand, when a marital partner is sexually unfaithful to the marital commitment, the act is termed adultery and it is an evil deed on a personal as well as a societal level.
Contrary to Nature
There are acts that accord with the rational consideration of human nature as well as acts that are contrary to its nature. As mentioned above, human beings are rational creatures who should conform their behavior rationally to the purpose and welfare of human nature. A human being is endowed with a rational mind and a wonderfully designed body. It is undeniably obvious that the purpose of the various organs and appendages are ordered to serve the health of the body and the continuation of the human species.
Evil according to nature
There are evils according to human nature as well as evils contrary to its nature. Many human activities correspond to nature, such as, eating, working, playing, and sex between a man and a woman. In themselves, they are necessary activities to fulfill human nature. However, for an act to fulfill human nature, it must be done in a manner that actually promotes the good. For example, eating is an act according to nature, and it is vitally necessary for the health of the body. However, neither gluttony nor starvation promotes the body’s health. Hence, while eating, per se, is an act according to nature, it is an evil when it is not rationally moderated according to the physical needs of the body.
Likewise, sex between a man and a woman is in accordance with human nature. The male and female sexual organs are mutually intended for each other to fulfill the miraculous purpose of generating human life. The same biological relationship does not exist between members of the same sex. While sex between a male and female is good and in accordance with human nature, it is an evil act when it is done without respect to the natural purpose and potential consequence of sexual intercourse. Thus fornication and adultery are evil sexual acts, even though the acts, per se, are in harmony with the natural purpose of the sexual organs. Fornication and adultery are evil acts because they are done without the long-term marital commitment that is necessary should the natural purpose of sex be fulfilled and a child be conceived. Too often a child is conceived in these circumstances and is then aborted to avoid the duties and obligations of parenthood.
Evil contrary to nature
There are acts that are intrinsically evil because they are contrary to the fulfillment and flourishing of human nature. Some acts contrary to human nature are self-mutilation, suicide, cannibalism, homosexuality, and bestiality. Self-mutilation alters or destroys a part of a person’s body so that it is not able to serve its intended purpose. For example, castration frustrates a person’s natural ability to procreate. Hence, castration is intrinsically evil in that it prevents the fulfillment of human nature.
Likewise, homosexuality and bestiality frustrate the natural purpose of the human reproductive organs. Consequently, these acts are intrinsically evil because they are opposed rationally to their natural purpose. Legally, these acts have been classified as crimes against nature. 12 Today the court has legitimized homosexuality under the rubric of the due process and the equal protection clauses of the Constitution. 13 In its famed sweet-mystery-of-life passage, the court teaches that the commission of acts against nature is permissible when a person finds them necessary “to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life.” 14 By a similar line of reasoning, the court teaches that a woman may act against motherhood and kill her unborn child. When the rational consideration of human nature plays no part in law, anything is legally possible, including murder.
Bestiality is more depraved than homosexuality because it degrades human nature to the level of an irrational beast. Although homosexuality does not degrade human nature to the level of a beast, it perverts human nature by ignoring the complementary sexual nature of a man and a woman. The male homosexual act requires that one of the men use his body as if his body were a woman’s body. Likewise, the female homosexual act requires a substitute for the external male reproductive organ. Although homosexuals pervert the natural order of human sexuality, they cannot ignore it all together. In fact, they use various techniques and substitutes to mimic the natural use of the complementary sexual organ.
Responses to the Arguments
Individual liberty is the cherished right of each of us to seek to live our lives in the way that we find most personally fulfilling. 15 However, this liberty has to be rationally limited in countless ways so that this freedom itself does not frustrate the fulfillment of human nature and the common good of society. In fact, nearly every law and statute limits liberty in some fashion or other. For example, a thief may find that stealing another’s property is very fulfilling. An older man may find that sexual liberties with an immature female are gratifying. Another person may find it exhilarating to drive an automobile at excessive speeds. However, these liberties are restricted for society’s common good. In deed, it is these restrictions that turn libertine chaos into an ordered social structure where human nature is best able to find its fulfillment and happiness. There has to be an appropriate balance between freedom and structure (or liberty and order) for a community to flourish as a whole.
Some argue that this cherished value provides a legal principle for homosexual marriage. However, as mentioned above, homosexual relationships are never productive, either potentially or actually, of human offspring. At best, homosexual relationships are intimate friendships. In deed, it would be more appropriate to believe that legislative regulations of friendships would unnecessarily infringe and burden a person’s liberty to form and dissolve friendships as he or she chooses.
Furthermore, if friendships were given the same legal status of marriage, it would impact society and the liberties of other individuals. It would encourage legal friendship to be formed for the sole purpose of obtaining the status that a state affords marriage for the benefit of its future generations. Businesses may be required to extend the same benefits to an employee’s friends as they are extended to an employee’s spouse and children. The net effect would be to reduce the protection law affords to nature’s biological union that gives society its future generations.
Again, the principle of equal rights is a cherished and honored foundation of law and civil society. We need to answer the question, “Is the principle of equal rights violated by limiting marriage to the union of one man and one woman?” Firstly, if marriage were an artificial association of persons, it would be a violation of equal rights to restrict marriage based upon the sex of the members of the association. However, marriage is not an artificial social association. It is a natural biological union of two persons of the opposite sex who have the potentiality of creating a third human being who owes its genetic identity to both its mother and father. For millennia societies have honored, revered, and celebrated this biological fact of human nature. Now governmental institutions have shifted away from cooperating with the natural wonder of human procreation. Instead they seek to ignore or trivialize the importance of the very biological foundations of human existence and society itself.
Furthermore, the principle of equal rights is not violated, because the law allows, equally, a man or woman to be married to a person of the opposite sex. Secondly, marriage between a man and a woman is the most profound statement of the equality of the sexes. Neither all men alone nor all women alone are sufficient to express the fullness of human dignity, equality, and mutual dependency. This is only completely expressed through the union between two persons of the opposite sex. Only together can a man and woman become a father and mother and procreate a child who reflects the equal and necessary contribution of both sexes to its existence. Every person has a biological history with an equal genetic contribution of the two sexes. It is nature’s way to demonstrate to the sexes their equality, complementarity, and mutual dependency.
Finally, equal rights are not violated, because the state allows its citizens freely to form friendship without respect to the sexual identity of the friends involved.
In an effort to circumvent the natural union of a man and woman, activist judges shrewdly alter the definition of marriage and ignore the biological facts of human nature. One judge posited, “To “marry” means to join together in a close and permanent way.” 16 This synthetic definition ignores the biological definition of marriage; and, depending upon the subjective interpretation of ‘close’ and ‘permanent’, it would encompass natural as well as artificial human associations. There is no rational reason why the synthetic definition should not encompass incestuous, polygamous, polyandrous, bisexual, and homosexual relationships where individuals are joined in a close and permanent way. But apparently, this inclusiveness is precisely the long term objective that these judges have in view.
Furthermore, if the rational consideration of human nature were any guide to the court, it would discover that incestuous, polygamous, and polyandrous relationships are more natural associations than a homosexual relationship. At least these associations are between men and women. So, logically, these relationships deserve the court’s favor more than any homosexual relationships. Eventually these associations will be legalized, because the judiciary has set aside the basis for the natural justice requirements of the biological bond between one man and one woman.
Law and nature
The constitutions of many nations affirm 17 the rights and liberties of its citizens. Generally, their courts do not extend all of these rights and liberties to children in the same manner that adults may enjoy them. The courts and legislatures recognize that young children lack the mental and social development to act in an intelligent, mature, and responsible manner. In the case of children, they take into consideration the biological and psychological development of a human being. If nature were no guide to law, then by what rationale are children excluded from all the liberties that adults enjoy? Why is it so wrong to consider the realities of the role of two persons of the opposite sex in the issue of marriage and procreation? Essentially, marriage law ought to provide children with an unambiguous heredity and parents who have a clear duty to provide them with their economic, social, and intellectual needs.
Some justices argue that childbearing is not essential to marriage, because some couples may not be able or may choose not to bear children. Yet, these couples are afforded marriage licenses by the state. So, they argue that the requirement of actual childbearing is not a prerequisite to secure a marriage license. Therefore, a homosexual couple should have the right to be married.
However, this argument fails to take into consideration that law should correspond to the natural fulfillment of human nature. It should not be based upon its pathologies. In the case of marriage between a man and a woman, there is the potential they will conceive and give birth to a child. And, since parents are responsible to nurture their offspring, the state has an interest to protect the rights of children who are the state’s next generation.
Some couples may never be able to conceive and bear children, while others may eventually overcome these obstacles and give birth to a child. Secondly, some couples may choose not to have a child, but even in this case, they still have the potential of an unplanned pregnancy. These eventualities and potentialities never exist for a homosexual relationship. Further, it is not possible to know what the future will actually hold for each married couple. Yet, these uncertainties should not be the basis to assault the reality that each child has a biological mother and a biological father and that the state has a compelling interest to protect a child’s natural rights.
Finally, as mentioned above, when a state’s law protects the natural union of marriage, it teaches the value of children and the responsibilities that biological parents have toward their offspring. It affirms life and the value of continued human existence. If marriage were re-defined to include any close and permanent relationship between persons, it would teach that close friendships were no different from marriage. And, for example, if marriage licenses were not available for polygamous relationships, the law would be arbitrary and irrational and support prejudice, discrimination, and intolerance towards individuals who desire this type of personal relationship.
Many jurists base their legal reasoning upon an abnormal circumstance to undermine the normal order of marriage. In one case, a judge argued that procreation is not fundamental to the nature of marriage. For example, he noted that it is obvious that an inmate in prison confinement cannot procreate with a spouse who resides outside of the prison. Yet, a prison inmate can become married. Therefore, he argued that marriage is not related to the idea of human procreation. He opined that marriage is just a supportive and committed human relationship with certain legal benefits and property rights.
Yet, the hallmarks of the marital relationship to which the inmates and their intended aspired, are not linked to a capacity to procreate. 18
By reasoning from the abnormal, the jurist chiseled away from marriage one of its most important purposes and taught that marriage serves primarily to recognize a psychological bond between two individuals. With the important purpose of marriage eliminated, he argued that homosexuals who are supportive and committed to each other have the fundament right to marriage too. With this groundwork laid, it would logically follow that every polyamorous relationship with supportive and committed members deserves the fundamental right to marriage.
By the same line of reductive reasoning, a future judge might observe that not all marriage partners are committed and supportive of one another. Therefore, it would logically follow that a supportive commitment between members of the marriage relationship is not a requirement for a legal marriage. Perchance the ultimate purpose for marriage is solely to serve individuals who desire to enjoy certain tax benefits.
In the issue of inmate marriage, the judge chose deliberately not to give weight to the fact that most inmates are eventually freed from prison and will consummate their marriage and have children. This possibility was noted in the decision of Turner v. Safley, 482 U.S. 78, at 95-96.
Third, most inmates eventually will be released by parole or commutation, and therefore most inmate marriages are formed in the expectation that they ultimately will be fully consummated. 19
Homosexual activists and secular judges cast the arguments against homosexual marriage as merely notions based upon some religious text. Too often religious individuals fall into this clever trap and foolishly agree that marriage is fundamentally a religious institution. No doubt, various religions have a variety of ideas and doctrines about the nature of marriage. For example, Islam teaches that a man may have a maximum of four wives, 20 while Jesus and the New Testament scriptures teach that a man should have only one wife. 21 Some Old Testament patriarchs had one wife while others had many wives. 22 More to the point, religious opponents to homosexual marriage argue that homosexuality has to be wrong on the basis that it is condemned in their sacred texts.
Secular judges easily debunk the ‘religious’ argument by noting that religions do not speak with a uniform voice regarding marriage and homosexuality. They are aware that some religious organizations perform homosexual marriages. Furthermore, they point to the principle of the separation of church and state and note correctly that church doctrine is not to be the basis of state law. As a polite courtesy, the religious opponents to homosexual marriage are kindly patted on the head and quickly escorted from the courtroom with a condescending smile. The secular judge wished fondly that every argument were so easily as dispatched as the ‘religious’ one.
Biologically, it does not make any difference what a religious text teaches. The actuality is that nature requires the genetic contribution from one man and one woman to bring a new human being into existence. This is true whether a person is religious or non-religious. (It is a biological fact of technologically assisted reproduction too. One female ovum may only be fertilized by one male sperm to be viable. Polyspermy fails to yield a viable embryo.) So the focus of controversy is whether or not courts should recognize the biological facts of human reproduction and the consequent duties a man and a woman assume when they become married with the possibility of bearing children.
As a side note, the natural rights of children and the duties of parents inform many religious doctrines. So, it is to these moral, natural, and scientific foundations that religious individuals must appeal as a rational basis for state law. Otherwise religious individuals will actually assist justices in their attempt to trivialize heterosexual marriage. It’s foolish to give them cover to dismiss marriage as if its sole basis were the need to be faithful to some sacred law or text. You don’t have to depend upon a sacred text to prove the sun exists.
Others argue against homosexual marriage by claiming that marriage has traditionally always been between one man and one woman. As noted by a court, this is circular reasoning. The ‘tradition’ argument would be fallacious if tradition itself were the only reason for continuing a tradition.
But it is circular reasoning, not analysis, to maintain that marriage must remain a heterosexual institution because that is what it historically has been. 23
While tradition may be informative, it is not determinative. In fact, one judge wrote that states don’t have an obligation to be bound by tradition.
Serving tradition, for the sake of tradition alone, is not a compelling state interest. 24
However, the reason that marriage has traditionally always been between one man and one woman is that this union is the only union that gives rise to the next generation of citizens. The tradition is grounded in the biological facts of human nature. The reason for the tradition enduring through the millennia is that the biological facts of human reproduction have endured through the millennia.
This is nothing new to these justices. They know all these facts of human nature. However, they are so driven by a desire to affirm homosexual relationships that they are willing to subvert the justice due children and reason against the natural foundations of marriage.
Pitting value against value
A very popular ploy judges use to subvert justice is to have a lesser value defeat a greater value. This tactic takes advantage of the fact that it may be difficult to discern what value ought to take precedence when values compete with one another. For example everyone values privacy and personal autonomy. However, these values should not preempt the value we place upon life. Life is the foundation upon which privacy and personal autonomy are built. A person who is not alive cannot enjoy privacy, autonomy, liberty, the pursuit of happiness, etc.
In the abortion decisions of the US Supreme Court, the majority strove to trivialize the life of the pre-born baby and did their utmost to put inestimable value upon the mother’s privacy and autonomy. As a consequence, the majority of the court felt they had given adequate justification to have the mother’s right-to-privacy defeat the baby’s right-to-life.
In the case of marriage, justices utilize this strategy to elevate homosexual relationships to the level of marriage. After giving a favorable nod to marital procreation, they turn and demean its procreative value while bolstering the value of intimacy, commitment, and spirituality of the marital relationship.
Yet, the hallmarks of the marital relationship to which the inmates and their intended aspired, are not linked to a capacity to procreate. It is to a non-coital relationship but one that was supportive, committed, spiritually significant marriage with governmental benefits and property rights … 25
[i]t is the exclusive and permanent commitment of the marriage partners to one another, not the begetting of children, that is the sine qua non of civil marriage. 26
The goal of this observation is to diminish heterosexual marriage and to elevate homosexual unions, so that these two relationships would appear to be essentially equal in societal value. If they were equal, then it would be only fair for the courts to extend civil marriage to these relationships too.
If marriage were no more than a committed and supportive friendship, then the justices ought to have their way. But, marriage is superior to any friendship, because it entails the potentiality of bringing a baby into the world. The law ought to teach that the male-female union is a whole that is greater than the sum of its parts. This union alone has the potential to bring into the world a new child who is a living testimony to the unity, equality, and intimacy of the male-female bond, and who changes the marriage into a family and the husband and wife into a father and mother. It binds one generation to the next because the parents see the reflection of their likeness in their child and the child discovers its own origin and likeness in its mother and father.
‘Two evils are better than one’ argument
Some jurists use the ‘two evils are better than one’ argument. This argument may be illustrated this way. Since it is legal to drink alcohol, it ought to be legal to use narcotics. From one evil they argue for the permissibility of another evil. It’s as if the more evils the better.
No one disputes the fact that some heterosexual marriages abuse their children, cheat on their taxes, watch porn films, commit adultery, and take heroin. When these things occur, it is an evil for the family. The solution to these evils is moral education, effective laws and jail time for violating them. Affirming homosexual marriage will not solve heterosexual family problems. Nevertheless, the judge suggests, if society allows the evils of heterosexual marriages, why shouldn’t homosexual couples be allowed to be married? It’s a fairly clever argument that some find psychologically appealing.
Some declaim that the institutions of marriage and family are weak these days and, in fact, stand threatened. Any trial court judge who regularly hears divorce, child abuse and domestic violence cases deeply shares this concern. It is not difficult, however, to identify both the causes of the present situation and the primary future threat. They come from inside the institution, not outside of it. Not to be too harsh, but they are a shortage of commitment and an excess of selfishness. Before the Court stand eight couples who credibly represent that they are ready and willing to make the right kind of commitment to partners and family for the right kinds of reasons. All they ask is for the state to make them able. 27
However, there is no logical connection between the two observations. For example, some adults are very corrupt, while many 13 year olds are very moral. Does it follow logically that just because some 13 year olds are exemplary that all 13 year olds should be given the same legal rights as adults? Likewise, just because some marriages are terrible examples, it does not follow rationally that other types of human relationship should be granted civil marriages. This justice astutely ignored the male-female foundation of marriage and painted marriage as if it were merely a committed friendship.
‘Institution is flawed’ argument
Incredibly the jurist blamed the problems of the institution of marriage solely upon the institution itself. It is as if the judiciary has had no impact upon its current status. The judge should be reminded that the judiciary and legislature have been assaulting the institution for the last 50 years.
It is not difficult, however, to identify both the causes of the present situation and the primary future threat. They come from inside the institution, not outside of it. 28
Abortion. — The legalization of abortion teaches the state’s citizens that pre-born children have little or no value. The citizenry doesn’t make all nuanced distinction of which judges are fond. A pregnant teenager and her boyfriend discuss abortion in terms of getting rid of their baby and not in terms of ‘fetal tissue’ or ‘potential life’. These teenagers are more truthful about abortion than the justices of the Supreme Court of the United States. Essentially, the law teaches that you have the legal right to abuse your baby until it is born. Its effect is to reduce the gravity of all child abuse, which in turn weakens the institution of marriage. The blood of millions of pre-born babies stains the hands of the judiciary who denied them their natural justice.
Pornography. — The judiciary has done its best to stymie legislative efforts to regulate pornography effectively. Pornography floods the nation with tragic consequences upon the institution of marriage. It is too accessible to young boys and girls who find it intriguing and become sexually active at a young age. Promiscuity, venereal disease, pregnancy, abortion, incest, and sterility are some of the indirect results of the judiciary upon the family. Pornography impacts the bond between the husband and wife too, making sexual relations outside of marriage seem normal and attractive. There are no criminal penalties for adultery, teaching the citizens that adultery is a harmless activity.
Divorce. — The state has trivialized marriage to the point where there are no additional penalties for an adulterous spouse to consider when contemplating divorce. With easy divorce, it is not surprising divorce rates have sky rocketed over the last fifty years. It has left a trail of devastated spouses and fatherless children. Again, the state is not blameless for the current divorce rate. Its laws teach there is no fault divorce, which is utterly false. There is fault when couples divorce.
Homosexuality. — The U.S. Supreme Court now teaches that homosexuality is protected by the state. The court’s teaching will confuse young boys and girls who are naturally attracted to members of their same sex until approximately 12 years old. This is part of their normal psychological development when they first learn their own sexual identity. During this period, they have less interest in the opposite sex. When the educational system applies the court’s doctrine to the school classroom, some of these children will think they are homosexuals because they have stronger feelings for their own sex than the opposite sex. Educators will use it as an opportune time to recruit them into the homosexual lifestyle.
Meanwhile, the jurists wash their hands of the problems of the institution of marriage as if the institution itself were solely to blame for its problems and that the court’s doctrines have had no impact upon the current state of marriage. This is clearly not the case and the justices know it. The very purpose of the decisions of the bench is to teach and effect change in society. It is as ludicrous as if a teacher were to claim that the purpose of the education system is not to teach and effect change in students.
A jurist may employ the ‘logical’ argument to deflect concern about the effects of a court’s decision. However, while the feared outcome of a court’s decision may not be logically necessary, it might be logically possible. For example, it was not logically necessary that the Roe v Wade and Doe v Bolton decisions increase the number of abortions in the United States, however it was logically possible. While it was not logically necessary, the number of abortions increased by the millions. Therefore, we need to be careful when a judge claims there is no logical way his decision will negatively impact important aspects of the institution of marriage.
The precise question is whether barring committed same-sex couples from the benefits of the civil marriage laws somehow serves the interest of encouraging procreation. There is no logical way in which it does so. 29 (Emphasis added).
In other words, would adding this benefit for the second group [homosexuals] (and their children) injure that legitimate state interest in the support of families and the nurturance of children? Again, there is no logical way in which it would be so. 30 (Emphasis added).
In spite of the judge’s assertion, it is logically possible that the judiciary’s new teaching on marriage will have an effect on marriage, procreation, family, and children. In the past, the court taught that marriage of one man with one woman was the best environment to instill moral, cultural, and spiritual values in children. Now, the court teaches that a family who lacks a father or a mother is just as desirable as those with both a father and a mother. Studies have already shown that the court’s new doctrine is clearly false. “Nationally, more than 70 percent of all juveniles in state reform institutions come from fatherless homes.” 31 For example, some courts have already chosen to give equal marital status to lesbian partners who may use assisted reproductive technologies to procreate. When a lesbian gives birth to a boy, the boy will be raised in a fatherless environment, an environment that statistically yields a higher rate of criminal behavior than a familial environment with a biological father.
Furthermore the judge framed the two questions with a view to approve homosexual marriage. His answer for both questions is no.
- Would barring homosexuality marriage lower procreation? No.
- Would blessing homosexuality marriage lower the state support of families and children? No.
However, the same questions could be asked of incestuous, polygamous, polyandrous, and bisexual marriages too. The filling in the blanks with any of these marriages would yield the same answer.
- Would barring _______ marriage lower procreation? No.
- Would blessing _______ marriage lower the state’s support of families and children? No.
Because the judge framed the wrong questions, his logic proved too much. The judge should have returned to the first principles of nature. The biological family is a natural society of a husband, wife, and child, and it is more basic than the society of a state. The state is not necessary for a family to exist, but the family is necessary for a state to exist. The family’s foundation is the biological natural order, and it is not founded upon the whims and wishes of jurists.
The question should have been.
- Should the state bless the relationship that alone has nature’s potentiality to procreate with the consequent duty to nurture its offspring? Yes.
- Do children have a natural right to be nurtured by their own father and mother? Yes.
- Should the state bar the marriage from relationships that lack nature’s potentiality to procreate? Yes.
‘Assisted reproductive technologies’ argument
Health care should assist nature to fulfill its intended purpose. For example, antibiotic assist the body in fighting disease. Surgery assists the body in removing cancers and diseased tissues. Dentists remove tooth decay and restore teeth to their original function. Thus, it is perfectly acceptable for a married heterosexual couple to visit a fertility clinic to become pregnant. These reproductive technologies have assisted many husbands and wives in giving birth to their children.
However, health care should not oppose or circumvent nature. For example, when a state’s law allows a lesbian to be artificially inseminated, it demeans and trivializes fatherhood to that of an unknown sperm donor who has no legal or moral responsibility to care and support his own biological children. Further, it rejects the natural right of children to the nurture and role of its own father. We should not forget the child is deprived of its paternal relationships too, viz., its grandfather, grandmother, uncles, aunts, and cousins. According to the United Nations Convention on the Rights of the Child, a child has the right to know and be nurtured by its own parents. 32 Lesbian procreation violates this UN Convention.
Declaration of Independence
Self-evident truths, so profoundly and elegantly stated in the Declaration of Independence, are the foundation upon which the United States Constitution rests. It states the laws of nature and nature’s God have endowed all human beings with certain unalienable rights and that to secure these rights governments are instituted, deriving their just powers from the consent of the governed. It is a law of nature that children have the right to be nurtured by their parents and parents have the duty to care for their own children. The purpose of government is to assure these rights and duties are fulfilled. Yet, jurists assault the natural justice of marriage by their gay marriage arguments and subvert the very purpose of the Constitution without the consent of the governed.
… and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, …
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, …
As important as these truths are, many law schools dismiss these universal first principles of governance, claiming these first principles are merely religion opinions, instead of a rational consideration of human nature. In fact, many law students would not be able to give a convincing defense of these natural first principles and their vital relationship to the Constitution.
When the Constitution is interpreted contrary to principles of the Declaration of Independence, it undermines its own foundation. Clearly, there is nothing in the Constitution regarding homosexuality or gay marriage. For example, in Bowers v. Hardwick, 478 U.S. 186 (1986), the U.S. Supreme Court stated, “The Constitution does not confer a fundamental right upon homosexuals to engage in sodomy.” 33 Amazingly, only seventeen years later, the same court reading the same Constitution stated that it confers the right to engage in this behavior. 34 In this ruling, the court did the following:
- It violated natural law.
- It usurped the rights of the states.
- It reached beyond the meaning of the Constitution.
- It imposed its own rule upon the nation.
This emphasizes the vital need for Congress to appoint justices who respect the Constitution and the principles of democratic rule.
Nowhere does the text of the Constitution of the United States claim to be a living document to be molded to satisfy the legal objectives of the nine lawyers of the U.S. Supreme Court. It is to be interpreted as it was meant to be understood by its framers. Furthermore, the Tenth amendment reserves powers to the states and the people that were not delegated to the federal government in the Constitution.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. — U.S. Constitution, Tenth Amendment. 35
In the past, jurist respected the Constitution and this amendment and did not reach beyond their constitutional authority. Consequently, when the people wanted to extend their jurisdiction, it was necessary for them to have Congress and the states pass a constitutional amendment. Some of these amendments were:
- Prohibition of slavery.
- Race and the right to vote.
- Income tax.
- Prohibition on sale of alcohol.
- Woman's suffrage rights.
- Abolition of the poll tax qualification in federal elections.
- Reduction of voting age qualification.
- Pay raises and Congress.
With the sweeping powers of today’s judiciary, it is doubtful that many of these amendments would be necessary. Today’s judiciary would simply establish these laws by judicial fiat. In the case of abortion, homosexual marriage, and sodomy, there is nothing in the intent or meaning of the Constitution to allow the justices to trump the principle of majority rule. Yet, this has not stopped the judiciary from usurping the role of the state legislatures in these matters. 36
Social activists know that it is difficult to win a democratic vote, so they have turned to the courts to bypass the legislative process. Had the justices interpreted the Constitution as intended, these activists would have had the burden of ratifying constitutional amendments to legalize abortion, homosexual marriage, and sodomy. This would have been the appropriate and constitutional thing for them to do. Incredibly, the judiciary claimed that these acts, which are contrary to the rational consideration of human nature, were implicit in the nation’s constitution. These nine lawyers turned the tables against the entire democratic majority and broadened their authority beyond the text of the Constitution, subverting the constitutional amendment process. Previously, amendments were passed to extend the powers of the court. Now, amendments will have to limit its judicial jurisdiction. Amazingly, it is the democratic majority who now carries the burden of preventing the destruction of pre-born children, defining marriage as between a man and a woman, and criminalizing crimes against nature.
As mentioned in the Declaration of Independence, the universal first principles of government for all people are the self-evident principles of the laws of nature and nature’s God who is the Supreme Judge of the world. Clearly, these decisions of the Court violate the first principles of government, eroding the principles of a just and virtuous society. Furthermore, judges who subvert natural justice and a nation who allow these evil decisions deserve the punishment and wrath of the Supreme judge of the world. Ultimately, it is we the people who are accountable to the Supreme Judge when our nation forsakes righteous government. May we be energized to seek the common good and to live rationally according to the laws of nature and nature’s God!
© April 8, 2005. Copyright. This article may be freely distributed as long as it is distributed in its entirety.
1Declaration of the Rights of the Child, (http://www.unhchr.ch/html/menu3/b/25.htm), Office of the United Nations High Commissioner for Human Rights
3 “ … the medical judgment may be exercised in the light of all factors — physical, emotional, psychological, familial, and the woman's age — relevant to the well-being of the patient. All these factors may relate to health.” Doe v. Bolton, 410 U.S. 179, 188 (1973)1. Thus, the health of the mother clause permits her to abort her baby because of psychological embarrassment, dislike of children, convenience, family planning, career considerations, and the fear of stretch marks on her belly. See also section .
4 Article 7 (1). … the right to know and be cared for by his or her parents. The Convention on the Rights of the Child1, (http://www.unicef.org/crc/fulltext.htm1), UNICIF.
5 Vesicovaginal fistula (VVF) is a subtype of female urogenital fistula (UGF). VVF is an abnormal fistulous tract extending between the bladder and the vagina that allows the continuous involuntary discharge of urine into the vaginal vault. In addition to the medical sequelae from these fistulas, they often have a profound effect on the patient's emotional well-being. ... Numerous factors contribute to the development of VVF in developing countries. Commonly, these are areas where the culture encourages marriage and conception at a young age, often before full pelvic growth has been achieved. Quotation is taken from Emedicine1 (http://www.emedicine.com/med/topic3321.htm). See also a BBC article, Sierra Leone's silent sufferers1 (http://news.bbc.co.uk/2/hi/africa/3817009.stm), where a human face is put upon the malady.
6 Can a newborn get syphilis?1 (http://www.mamashealth.com/syphilis.asp)
7 Selected Michigan Marriage Laws1 (http://www.ewashtenaw.org/government/clerk_register/cr_clklawsm.html)
10 Brief for Monroe Inker and Charles Kindregan1, Amici Curiae, Submitted in Goodridge et al., vs Department of Public Health et. al., Supreme Judicial Court, Commonwealth of Massachusetts, No. SJC 08860, p.11. (http://www.mafamily.org/d_mfi_amicus.pdf)
11 Brief for Urban League of Eastern Massachusetts, et. al., Amici Curiae, Submitted in Goodridge et al., vs Department of Public Health et. al., Supreme Judicial Court, Commonwealth of Massachusetts, No. SJC 08860, p.1.
12 Crime against nature. Deviate sexual intercourse per os or per anum between human beings who are not husband and wife and any form of sexual intercourse with an animal. Black, Henry C., Black’s Law Dictionary, West Publishing Co., St. Paul, MN, 5th edition, p. 334.
13 Lawrence et.al. v. Texas, case no. 02-1021. (http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=02-102)
15 Downing, Hon. William L, Memorandum Opinion and Order on Cross Motions for Summary Judgment, Heather Andersen and Leslie Christian; et al., Plaintiffs, v. King County, et al., Defendants and Third-Party Plaintiffs, v. State of Washington, Third-Party Defendant, and Senator Val Stevens, et al., Intervenor Defendants, King County Superior Court, Seattle, WA, No. 04-2-04964-4 SEA, p. 2.
16 Ibid., Hon. William L Downing, p. 5.
17 Fundamentally, these rights and liberties are not gifts of the state, because humans are endowed naturally by their Creator with these liberties. Human laws should compliment, not contradict, the laws of nature. If a human law were to violate the laws of nature, it would be a crime against nature’s God who is the Supreme Judge of the world. — “[T]he Laws of Nature and of Nature's God … We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. … the Supreme Judge of the world …” The Declaration of Independence, July 4, 1776
18 Ibid., Hon. William L Downing, p. 13.
19 Ibid., Hon. William L Downing, p. 12. Quoting from Turner v. Safley, 482 U.S. 78, at 95-96.
20 Qur’an 4:3.
21 I Timothy 3:12.
22 I Kings 11:1-4.
23 Goodridge v. Department of Public Health, 440 Mass. 309, 332 n. 23, 798 N.E.2d 941, 2003.
24 Ibid., Hon. William L Downing, p. 17.
25 Ibid., Hon. William L Downing, p. 13.
26 Goodridge v. Department of Public Health, 440 Mass. 309, 332 n. 23, 798 N.E.2d 941, 2003.
27 Ibid., Hon. William L Downing, p. 17.
28 Ibid., Hon. William L Downing, p. 17.
29 Ibid., Hon. William L Downing, p. 18-19.
30 Ibid., Hon. William L Downing, p. 19.
31 Amici Curiae Brief of Religious Groups, Individuals and a Fraternal Organization in Support of Defendants-Appellees1, Submitted in Goodridge et al., vs. Department of Public Health et. al., Supreme Judicial Court, Commonwealth of Massachusetts, No. SJC 08860, footnote p.28-29.
32 Article 7 (1). … the right to know and be cared for by his or her parents. The Convention on the Rights of the Child1, (http://www.unicef.org/crc/fulltext.htm1), UNICIF.
33 Bowers v. Hardwick, 478 U.S. 186 (1986).1
35 “The Tenth Amendment was intended to confirm the understanding of the people at the time the Constitution was adopted, that powers not granted to the United States were reserved to the states or to the people.” U.S. v. Sprague, 282 U.S. 716, 19311.
36 “But it is the premise of our system that those judgments are to be made by the people, and not imposed by a governing caste that knows best.” Lawrence et.al. v. Texas, case no. 02-1021, Justice Scalia, with whom the Chief Justice and Justice Thomas join, dissenting.