The Supreme Court recently declared gay marriage to be the law of the land. Now that the hype is over, we can ask ourselves the obvious question: is Justice Anthony Kennedy constitutionally correct in saying that the 14th Amendment guarantees a fundamental right for gays to marry?
No. Not even close.
In fact, he has about as much of a chance at making his case as religious leftists do at proving the Bible endorses homosexuality.
Come to think of it, the techniques employed by both actors are remarkably similar.
And that’s not an accident.
Under the Constitution’s original intent, Kennedy’s position that the collection of liberties embodied in 14th Amendment’s Due Process and Equal Protection Clauses mandate the recognition of gay marriage is easily crushed.
According to Alexander Hamilton, “The words ‘due process’ [sic] have a precise technical import, and are only applicable to the process and proceedings of the courts of justice; they can never be referred to an act of legislature.”
Constitutional scholar Charles Fairman, who studied the 14th Amendment extensively, demonstrates that 14th Amendment’s Due Process clause was lifted from that of the 5th Amendment.[1]
Since the 5th Amendment did not contain liberties involving what Kennedy calls “personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs,” neither does the 14th Amendment.
When the 14th Amendment was undergoing ratification, 32/37 or 86% of the states had criminal statutes on the mere act of sodomy, to say nothing of gay marriage (Bowers v. Hardwick). Not a single member of Congress said or implied that these laws would be struck down by the 14th Amendment and no one at any level of government raised the issue. One cannot make the case that the goal of the 14th Amendment’s equal protection clause was to legalize gay marriage, when the mere act of homosexuality was punished in most of the country.
Kennedy’s response to this latter fact is that “new insights and societal understandings” mandate an expansion of the concept of equality.
This leads to the final nail in his coffin: Section 5 of the 14th Amendment clearly states “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article” (emphasis added).
If changing times demand changing laws, it is the duty of Congress to act, not the Court. Therefore, Kennedy’s decision to have the Court use the 14th Amendment to force gay marriage on the nation is invalid.
If Kennedy’s argument can be destroyed so easily, how was he able to make his case?
Simple. He doesn’t follow the Constitution’s original intent,
In…[order]…to base their decisions on principled reasons and neutral discussions…courts have written a substantial body of law considering all sides of these issues. That case law helps to explain and formulate the underlying principles this Court now must consider….The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed (Emphasis added).
Did you catch that? The people who wrote the 14th Amendment are ancient 100-year old relics with limited vision of the future. The oh-so-wise Kennedy needs a court-manufactured “body of law” to interpret the Constitution in light of new insight our fathers did not have, rather than follow what they originally purposed to do with the 14th Amendment.
Now check this out.
The religious left insists that homosexuality is permissible in the eyes of God.
This is especially odd, considering that Christ called the practice was an “abomination” per se (John 10:30, Lev. 18:22) and Paul, speaking for Christ, said it was an “indecent act” born of “degrading passions” and that unrepentant practitioners were in as much of danger of hell as other sinners (Romans 1:26-27, I Cor. 6:9-11).
If one honors the clear, original intent of these passages as they were given, it is impossible to say that God is okay with homosexuality.
However, the religious left bypasses this difficulty the same way Justice Kennedy bypassed the Constitution: they ignore original intent and stick with contemporary “insights.”
Emergent Church co-founder Tony Jones, is on record of saying
“We know today something that neither Jesus nor Paul knew. And that is that human sexuality is a lot more complex than people thought it was in the ancient world.”
Mark Sandiln, a Presbyterian (USA) minister and co-founder of The Christian Left, likewise argues
“When the Bible was written, the earth was flat, the sun orbited the earth and the idea of a person having a sexual ‘orientation’ was completely foreign…. [W]e must accept the reality that the writers of those verses were in no way trying to, let alone capable of, acknowledging, understanding and addressing homosexual orientation.
While the Constitution and the Bible are drastically different documents, the arguments made by Kennedy and the religious left are the same: we know better than the people who wrote the book and need not limit ourselves to their short-shortsightedness.
Religious authorities who treat the Bible like Kennedy does the Constitution–cherishing “new insights” over original intent–will do in the Church what he did in government. They will place themselves as the highest authority to detriment of God and others.
As a result, their flocks will chuck the Bible for the traditions of men–traditions that will nullify the word of God (Mark 7:8; 13). This will render the church as dead as the contents of the whitewashed tombs Jesus used to describe the Pharisees (Matt 23:27).
Both the Court and the religious left are promising the Christian and LGBTQ communities “freedom” by sacrificing their respective foundational authorities for “new insights and societal understandings” that bless sexual deviancy. In reality, they themselves are slaves of corruption (2 Peter 2:19).
[1] Charles Fairman, “Does the Fourteenth Amendment Incorporate the Bill of Rights? The Original Understanding,” Stanford Law Review, Vol. 2, No. 1 (1949), 5-139, http://www.jstor.org/stable/1226431 (accessed April 23, 2013), 21
Comment by Trevor Thomas on July 2, 2015 at 5:23 pm
As many, including the President of the United States, taunt the truth and celebrate sin, there is still much to be done for those who are determined to stand for marriage as our Creator gave it to us. (See: Marriage: Where Do We Go From Here?)
Again, marriage is the oldest institution in the history of humanity–older than God’s covenant with the nation of Israel, older than The Law, older than the church. Marriage is one of the earliest truths revealed by God. If ANYTHING is true, marriage as the union of one man and one woman is true. On this, there can NEVER be compromise.