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The Reactionary Utopian
June 24, 2015

Sodomy and the Constitution 
A classic by Joseph Sobran
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[CLASSIC, September 2003] — Suddenly, in midsummer, everyone from USA Today to the Vatican is talking about the same topic: homosexual marriage. This is a little strange, since nobody, give or take an eccentric Roman emperor or two, has ever talked about it before. It threatens to eclipse the war in Iraq.


Now Justice Kennedy has served notice that the Fourteenth can be invoked to redefine marriage itself, under the Equal Protection Clause. He and perhaps a majority of his colleagues are plainly disposed to find traditional marriage laws unconstitutionally “discriminatory.”

 

I feel a certain sympathy, almost a sense of solidarity, with sane homosexuals — the silent majority, as it were. From time immemorial there have been men who have been chiefly attracted, erotically, to other men or, more commonly, boys. I don’t quite get it, I can’t regard it as anything but abnormal, I suppose one should disapprove of it, but there it is. I agree with C.S. Lewis, who, when asked about it, declined to discuss it at length because it wasn’t among the temptations that assailed him.

Of course this isn’t necessarily rational: I’m not especially tempted to commit ax murder either, but I’m quite willing to condemn it, if anyone doubts that I oppose it in principle. I wouldn’t want everyone to be an ax murderer, and if pressed I’ll admit that I wouldn’t want everyone to be homosexual. Our Creator has disposed most of us otherwise, and that’s fine with me. As the woman in a James Thurber cartoon effuses to a startled male, “I just love the idea of there being two sexes, don’t you?” Amen, lady. Where the opposite sex is concerned, I’ve always been inclined to swoon a bit.

But even if I were otherwise inclined, I would still, I trust, see the point of there being two sexes. I’d recognize it as a shortcoming in myself that I was unable to respond to the other sex — viz., the female — in the way that nature seems to have ordained. And here, if I may presume to say so, I think that I speak for most sodomites. In the “gay marriage” debate, American public discussion has maintained its usual wretched level. And as usual, the liberals don’t realize how silly they sound. There have been the routine complaints about old men in the Vatican trying to control others’ sex lives, refusing to adapt to the times, lacking the charity enjoined by Christ, hypocritically ignoring the Church’s own problem with pedophile priests, et cetera, et cetera.

All this is miles off the point. Homosexuals already have the right to marry, even if they can’t or won’t exercise it — that is, the right to marry someone of the opposite sex. This is supposedly a heartless thing to say, but what is being demanded now is not the extension of a right, but the total redefinition of a thing that existed long before the Catholic Church came along.

 

 

Ratified under duress after the Civil War, the Fourteenth forbids any state to “deny to any person ... the equal protection of the laws.” These few words have produced more judicial mischief than all the rest of the U.S. Constitution.

The basic reason for marriage is neither religious nor romantic; it’s practical. It connects a man with his children (and their mother), providing for their support, clarifying property rights, establishing inheritance, and so forth. Every society has some version of it. Every society also has homosexuality, especially pederasty, but even those societies most tolerant of different sexual practices have seen no need for same-sex “marriage,” simply because it’s an absurdity. To put it clinically, children are seldom conceived in the lower end of the digestive tract.

So as not to prejudice the case, think only of non-Christian cultures: Chinese, Japanese, African, Arab, Viking, Aztec, Greek, Roman, Inca, Babylonian, Indian, Persian, Apache, Sioux, Eskimo, Hawaiian, as many as you like. Has the notion of same-sex marriage contradiction in terms. Which is really all there is to say about the matter.

It isn’t even necessary to disapprove of homosexuality in order to see that it can never have anything to do with marriage. This is where conservatives are getting as confused as liberals. Both sides think the issue is basically a moral one; a question of what kind of sexual behavior society is going to bless or condemn.

But the case would be just the same if homosexuality were regarded as the healthy norm and heterosexuality as a shameful deviation. It would still be necessary to make arrangements for the offspring of all those filthy “breeders.” It would be a question not of rights, but of responsibilities. In that case marriage might be inflicted as a sort of penalty, but it would be indispensable anyway. “You have to teach these people the consequences of their behavior.”

So why, after so many millennia, has this weird subject suddenly come up now? Only in America, one sighs. For one thing, there are many material incentives — employees’ benefits and government entitlements for which spouses are eligible — to get married, and these are also incentives to broaden the definition of marriage; that is, to apply the word marriage to domestic partnerships that aren’t really marriages at all.

And in today’s liberal culture, any basic social distinction can be stigmatized as “discrimination” — not discrimination in the old and sane sense of keeping unlike things separate, but in the current punitive sense of discriminating “against.” If you suffer any disadvantage from the ability of others to tell things apart, you now become a “victim” of discrimination, and the state must do something about it. Which brings us to the practical nub of the present issue. It can be summed up in two words: Anthony Kennedy.


It didn’t take a wizard to foresee the next step: Kennedy and his colleagues will very likely rule, in the fairly near future, that all laws based on the traditional and universal definition of marriage are also unconstitutionally “discriminatory.”

 

When Associate Justice Anthony Kennedy of the U.S. Supreme Court wrote the majority opinion striking down a Texas sodomy law at the end of the Court’s last term, liberals and conservatives alike saw the handwriting on the wall. Kennedy objected to that law on grounds that it “discriminated” against homosexuals as a class or group.

It didn’t take a wizard to foresee the next step: Kennedy and his colleagues will very likely rule, in the fairly near future, that all laws based on the traditional and universal definition of marriage are also unconstitutionally “discriminatory.”

Kennedy may not think very clearly, but nobody can deny that he thinks big. Overthrowing marriage itself would be a “historic” judicial act, sure to win liberal applause.

Naive people may wonder just where the Court gets off, redefining marriage. Well, why not? The Court has already redefined human life.

And how do such things come about? We owe it all to the Fourteenth Amendment. And thereby hangs a tale.

Ratified under duress after the Civil War, the Fourteenth forbids any state to “deny to any person ... the equal protection of the laws.” These few words have produced more judicial mischief than all the rest of the U.S. Constitution.

Originally their meaning was narrow and specific. After the war, the Republican Congress wanted to pass a civil rights act to protect
Southern Negroes, newly freed from slavery, from being denied the normal rights of citizenship. But the Federal Government had no authority to pass the act: under the federal principle as laid down in the Tenth Amendment, this was an area reserved to the separate states. The Fourteenth would provide a Constitutional basis for the act.

There is a huge historical irony here. The Fourteenth was necessary because Congress and the Federal judiciary still took the Tenth seriously. But over time, the judiciary has used the Fourteenth to nullify — and in effect repeal — the Tenth. To adapt a phrase of Justice Antonin Scalia, the Equal Protection clause is the clause that devoured the Constitution.

 

 

Naive people may wonder just where the Court gets off, redefining marriage. Well, why not? The Court has already redefined human life.

The first great milestone in the Supreme Court’s liberal activism was its 1954 ruling in Brown v. Board of Education. There it held that there can be no such thing as “separate but equal”: “Separate facilities are inherently unequal.” Logically, this was dubious (it
would rule out separate restrooms for the sexes, for example). But the Court was feeling its oats, and ever since then it has constantly broadened the meaning of “the equal protection of the laws.”

Countless state and local laws have been struck down on this pretext — so many that we can safely say that all state laws now exist only by sufferance of the Court. Today, no powers are firmly “reserved to the states, or to the people,” because there is no effective check on the judiciary. The other two branches have abdicated.

The Tenth Amendment was finally destroyed in 1973 by Roe v. Wade, which announced — again citing the Fourteenth Amendment
— that the states didn’t even have the Constitutional authority to protect unborn children from violent death. If the Court could strip the states of even that basic power, federalism in America was truly defunct. But though the ruling spawned a powerful anti-abortion movement, nobody proposed to discipline the Court itself. Everyone saw the moral and practical upshot of Roe, but hardly anyone saw the Constitutional implications.

Thanks to its expansive interpretation of the Fourteenth Amendment, the Court’s most arbitrary word is law. And Americans have passively accepted this. The Court routinely usurps vast powers without resistance or opposition.

Now Justice Kennedy has served notice that the Fourteenth can be invoked to redefine marriage itself, under the Equal Protection Clause. He and perhaps a majority of his colleagues are plainly disposed to find traditional marriage laws unconstitutionally “discriminatory.”

Republicans in Congress, apparently supported by President Bush, want to amend the Constitution to define marriage as a union between a man and a woman. That is, they want to amend the Constitution to anticipate a grotesque misinterpretation of it and prevent an assault on marriage overwhelmingly opposed by the American people. But this approach is totally wrong-headed and inadequate. It accepts the Court’s usurpations as legitimate, without challenging the Court’s authority to commit them.

Now, if ever, is the time to hit the Court where it lives. Kennedy and his colleagues must be told that they are flirting with impeachment and removal from office, if they dare to tamper with the institution of marriage. Nothing less will do; the rule of law itself is at stake. It’s long past time for the Court to be stripped of its immunity from Constitutional remedies.

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This essay by Joe Sobran, which appeared originally in the September 2003 edition of SOBRAN'S: THE REAL NEWS OF THE MONTH, is one of the essays in the upcoming Sobran anthology, Subtracting Christianity: Essays on American Culture and Society (fgfBooks, 2015). Learn more here.

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Joe Sobran was an author and a syndicated columnist. See bio and archives of some of his columns.

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