Legality vs Morality in Regards to Gay Rights

June 14, 2006 at 11:18 am | Posted in Uncategorized | 1 Comment

UPDATED:I’ve been thinking how to respond to Seth Wilder’s exceptionally well thought out and well written response to my thoughts on the issue of gay marriage.

The first thing, is that this is a political wedge issue always drawn out during election cycles by cynical and politically driven Christian Conservatives whose only desire is to undermine the credibility of their political opponents. As I think on it, I cannot recall a single issue pushed by the left just during political cycles. The issues political leftists like to bring up are brought up at all times. The gay marriage decision in Massachusetts came in 2004, yes, but was not driven by any elections in Massachusetts in 2004. Environmentalists do not find wedge issues to divide America during an election year. To them the problems of the environment are 24/7/52/365. Feminists who push for more equal rights do so year round, not just on the even years.

So why do these so-called Christians, who say they believe strongly in this, only come out of the shadows in election years? More importantly, if they know it will end up failing, why do they make the effort, if they only make it once every two years? Do they actually think they can be taken seriously when it stinks so bad of political opportunism? Do they not realize why gay rights/abortion rights/women’s rights/environmental issues gain so much stronghold? It is because those people who push for those rights actually care about their issues and make it a goal of theirs to push this 24/7/52/365.

If these so-called Christians (Christianists as Andrew Sullivan likes to call them) truly believed passionately about the cause, why do they not put the same effort as gay rights supporters?

They don’t because their real desire is to discredit their political opponents and set themselves up as the “righteous” party.

Because see, here is the conundrum. In regards to the issue of gays, they are morally correct, but they have not the heart to stand for what they actually believe. They are actually more rudderless on moral issues than they accuse liberals of being on national security. In essence, their very methods undermines the results they desire. Who in their right (not Right Wing) mind would support or sustain the anger and hate found in some churches that support this, protesting at the funerals of dead American soldiers simply because they were gay. (the image is from the MSNBC.com article). That is not of God. That is not the Gospel of Jesus Christ. I quote President Gordon B. Hinckley again, as I’ve quoted him numerous times since his April 2006 General Conference talk. (And I will continue quoting him until it gets ingrained in people’s heads regarding hate). President Hinckley on hatred and the Gospel:

Why do any of us have to be so mean and unkind to others? Why can’t all of us reach out in friendship to everyone about us? Why is there so much bitterness and animosity? It is not a part of the gospel of Jesus Christ.

My thoughts are that Christian conservatives should stop pretending to be the keepers of morality when all they do is play with it for political points.

Now, having said this, why does the Church of Jesus Christ of Latter Day Saints take sides with these modern day Pharisees? And moreover why do I?

The simple answer is because it is the right thing to do. The complex answer? Let’s get into it.

The Church of Jesus Christ of Latter Day Saints is not connected to Protestant religions, like the Baptists and Pentecostals and Methodists. In fact, Protestant religions, for the most part, are the ones who fund publishers who print anti-Mormon literature. The Church of Jesus Christ of Latter Day Saints is the Lord’s true church, and He is at the head. The question that needs to be asked is if Jesus were here on earth right now, what would He do? What would He tell His Senator?

The world today has a skewed understanding of morality and sexual purity. The world does not understand the purpose and design of the human body. The world claims the human body has a right to any sexual satisfaction the human body desires, irrespective of the consequences. Like any good advertiser, the world plays up the benefits of sexual satisfaction and puts in small print the consequences.

Seth, you are most correct that heterosexual relationships are pretty rocky and have a far more fundamentally destructive influence in the degradation of the family than homosexual relationships do. My personal marriage is in no way affected by what homosexuals do. That is not the point, and is a red herring, Seth.

The world around us teaches us to lust after the desires of our hearts, to take advantage of any feeling of satisfaction one may get out of any feeling he or she feels. Take a look for example at the cuddle puddle sensation going on these days. This is something new, hip, sexy, and soon to go mainstream among many, just like a few years back bi-sexuality was all the controversy.

The importance of morals is that they give you a grounding, an anchor to keep you on a certain path with the winds of the storm wailing about you, trying to push you one way or another. The importance of morals is that they identify who we really are, and where we originate from, and why we are who we are.

Tell me, if someone is training to be a marathon runner, how good of a marathon runner would he be if one day in practice a piece of pumpkin pie attracted his eye? Should he go for the pie, or should he continue his run? If he goes for the pie and finds that he likes the taste and wants more, can he continue running? Or is he changing who he is?

So who are we? We are sons and daughters of God, designed in his image, born here on earth to be tested to see how well we do at keeping his commandments. The Church of Jesus Christ of Latter Day Saints released a proclamation 11 years ago on The Family which declares boldly the fundamental importance of the family and of sexual purity. Elder Jeffrey R. Holland of the Quorum of the Twelve Apostles discusses the importance of sexual purity in his talk called: Of Souls, Symbols, and Sacraments. Toward the end he quotes Will and Ariel Durant who say this:

No one man [or woman], however brilliant or well-informed, can come in one lifetime to such fullness of understanding as to safely judge and dismiss the customs or institutions of his society, for these are the wisdom of generations after centuries of experiment in the laboratory of history. A youth boiling with hormones will wonder why he should not give full freedom to his sexual desires; and if he is unchecked by custom, morals, or laws, he may ruin his life [or hers] before he matures sufficiently to understand that sex is a river of fire that must be banked and cooled by a hundred restraints if it is not to consume in chaos both the individual and the group.

There are many ways and in many things that we regulate our bodies, what we put in it, what we put on it, all for the safety of the body. Why do we not do the same for our sexuality? Take a drug, for example, that heightens your senses, and charges your chemicals to react feverishly ecstatic. Is there anything wrong with taking something like this? Why is a drug like LSD or coccaine bad for the body? Or when you train a horse to follow your commands, do you let the horse do whatever it pleases, or do you set ground rules the horse must obey? The world around us does not tell us the consequences of sexual promiscuity, both heterosexual and homosexual.

So what? Both heterosexuals and homosexuals have their group of promiscuous fornicators, right? What therefore makes homosexuality all the worse? Elder Dallin H. Oaks of the Quorum of the Apostles tackled this question in his talk called
Same Gender Attraction. He said:

We should note that the words homosexual, lesbian, and gay are adjectives to describe particular thoughts, feelings, or behaviors. We should refrain from using these words as nouns to identify particular conditions or specific persons. Our religious doctrine dictates this usage. It is wrong to use these words to denote a condition, because this implies that a person is consigned by birth to a circumstance in which he or she has no choice in respect to the critically important matter of sexual behavior.

Feelings are another matter. Some kinds of feelings seem to be inborn. Others are traceable to mortal experiences. Still other feelings seem to be acquired from a complex interaction of “nature and nurture.” All of us have some feelings we did not choose, but the gospel of Jesus Christ teaches us that we still have the power to resist and reform our feelings (as needed) and to assure that they do not lead us to entertain inappropriate thoughts or to engage in sinful behavior.

Different persons have different physical characteristics and different susceptibilities to the various physical and emotional pressures we may encounter in our childhood and adult environments. We did not choose these personal susceptibilities either, but we do choose and will be accountable for the attitudes, priorities, behavior, and “lifestyle” we engraft upon them.

Essential to our doctrinal position on these matters is the difference between our freedom and our agency. Our freedom can be limited by various conditions of mortality, but God’s gift of agency cannot be limited by outside forces, because it is the basis for our accountability to him. The contrast between freedom and agency can be illustrated in the context of a hypothetical progression from feelings to thoughts to behavior to addiction. This progression can be seen on a variety of matters, such as gambling and the use of tobacco and alcohol.

Just as some people have different feelings than others, some people seem to be unusually susceptible to particular actions, reactions, or addictions. Perhaps such susceptibilities are inborn or acquired without personal choice or fault, like the unnamed ailment the Apostle Paul called “a thorn in the flesh, the messenger of Satan to buffet me, lest I should be exalted above measure” (2 Cor. 12:7). One person may have feelings that draw him toward gambling, but unlike those who only dabble, he becomes a compulsive gambler. Another person may have a taste for tobacco and a susceptibility to its addiction. Still another may have an unusual attraction to alcohol and the vulnerability to be readily propelled into alcoholism. Other examples may include a hot temper, a contentious manner, a covetous attitude, and so on.

In each case (and in other examples that could be given) the feelings or other characteristics that increase susceptibility to certain behavior may have some relationship to inheritance. But the relationship is probably very complex. The inherited element may be nothing more than an increased likelihood that an individual will acquire certain feelings if he or she encounters particular influences during the developmental years. But regardless of our different susceptibilities or vulnerabilities, which represent only variations on our mortal freedom (in mortality we are only “free according to the flesh” [2 Ne. 2:27]), we remain responsible for the exercise of our agency in the thoughts we entertain and the behavior we choose.

While we may feel an inclination towards something, anything, that does not equal a loss of choice on our part to either, a) continue with that inclination and participate in that inclination, or b) dismiss that inclination all together. If I feel extreme anger towards an individual, can I, on the arguments used by gay rights activists that they feel they have no choice but to succumb to the desires of their bodies and have homosexual relationships, justify killing someone because I felt I had no choice but to succumb to the desires of my body and kill that man? Obviously the comparison is silly. We all know killing someone in a fit of rage is wrong, right? But why is succumbing to homosexual activity under the same justification not just as equally wrong? Not saying the two are on the same par criminally speaking, but justifiably speaking, they are. Both claim a lack of choice in the matter. But that is incorrect. We do have a choice. We tell ourselves that we do not have a choice to comfort ourselves in our wrong choice. Have I ever seen a man attractive enough that would catch my eye and make me look at him twice? Sure. Did I do anything about it? No. Why not? Because it is wrong. Any justification using the lack of choice tries to break down the barrier between what is right and what is wrong. But just like killing a man in a fit of rage is wrong, just like a teacher sleeping with a 13 year old and claiming it was love is wrong, so is homosexuality. It goes against the very design of our bodies and the action of homosexuality goes against the commandments of God. As the Family proclamation stated, the very first commandment to all mankind was to be “fruitful and multiply and replenish the earth.” How can two men be fruitful and multiply? How can two women? It is impossible.

Elder Dallin H. Oaks continues:

“Most of us are born with [or develop] thorns in the flesh, some more visible, some more serious than others. We all seem to have susceptibilities to one disorder or another, but whatever our susceptibilities, we have the will and the power to control our thoughts and our actions. This must be so. God has said that he holds us accountable for what we do and what we think, so our thoughts and actions must be controllable by our agency. Once we have reached the age or condition of accountability, the claim ‘I was born that way’ does not excuse actions or thoughts that fail to conform to the commandments of God. We need to learn how to live so that a weakness that is mortal will not prevent us from achieving the goal that is eternal.

“God has promised that he will consecrate our afflictions for our gain (see 2 Ne. 2:2). The efforts we expend in overcoming any inherited [or developed] weakness build a spiritual strength that will serve us throughout eternity. Thus, when Paul prayed thrice that his ‘thorn in the flesh’ would depart from him, the Lord replied, ‘My grace is sufficient for thee: for my strength is made perfect in weakness.’ Obedient, Paul concluded:

“ ‘Most gladly therefore will I rather glory in my infirmities, that the power of Christ may rest upon me.

“ ‘Therefore I take pleasure in infirmities, in reproaches, in necessities, in persecutions, in distresses for Christ’s sake: for when I am weak, then am I strong’ (2 Cor. 12:9–10).

“Whatever our susceptibilities or tendencies [feelings], they cannot subject us to eternal consequences unless we exercise our free agency to do or think the things forbidden by the commandments of God. For example, a susceptibility to alcoholism impairs its victim’s freedom to partake without addiction, but his free agency allows him to abstain and thus escape the physical debilitation of alcohol and the spiritual deterioration of addiction.

“… Beware the argument that because a person has strong drives toward a particular act, he has no power of choice and therefore no responsibility for his actions. This contention runs counter to the most fundamental premises of the gospel of Jesus Christ.

“Satan would like us to believe that we are not responsible in this life. That is the result he tried to achieve by his contest in the pre-existence. A person who insists that he is not responsible for the exercise of his free agency because he was ‘born that way’ is trying to ignore the outcome of the War in Heaven. We are responsible, and if we argue otherwise, our efforts become part of the propaganda effort of the Adversary.

“Individual responsibility is a law of life. It applies in the law of man and the law of God. Society holds people responsible to control their impulses so we can live in a civilized society. God holds his children responsible to control their impulses in order that they can keep his commandments and realize their eternal destiny. The law does not excuse the short-tempered man who surrenders to his impulse to pull a trigger on his tormentor, or the greedy man who surrenders to his impulse to steal, or the pedophile who surrenders to his impulse to satisfy his sexual urges with children. …

“There is much we do not know about the extent of freedom we have in view of the various thorns in the flesh that afflict us in mortality. But this much we do know; we all have our free agency and God holds us accountable for the way we use it in thought and deed. That is fundamental.”

Those who claim “we’re born this way,” or “I had no choice” do not understand that they actually do have a choice irrespective of how they are born. Satan wants to destroy us, all of us here on this earth. His most devious methods are in making us think we are not responsible for our actions. If we are not responsible for our actions, boy what we could do! If I had no responsibility to my wife, what would stop me from having sexual relations with anybody? But see, there are a fundamental and real consequences if I were to do something like that.

Elder Oaks continues, with a discussion on the scientific evidences to this point about homosexuality:

In contrast to our doctrinal approach, many persons approach the problems of same-sex attraction solely from the standpoint of current science. While I am not qualified as a scientist, with the aid of scientific literature and with the advice of qualified scientists and practitioners, I will attempt to refute the claim of some that scientific discoveries demonstrate that avowed homosexuals and lesbians were “born that way.”

We live in a time of accelerating scientific discoveries about the human body. We know that our inheritance explains many of our physical characteristics. At the same time, we also know that our behavior is profoundly influenced by psychosocial factors such as parental and sibling relationships (especially during the formative years) and the culture in which we live. The debate over whether, or the extent to which, specific behavior is attributable to “nature” or to “nurture” is centuries old. Its application to the subject of same-sex feelings and behaviors is only one manifestation of a highly complex subject on which scientific knowledge is still in its infancy.

Some scientists deny that behavior is genetically influenced. 8 Others are advocates of evidence or theories suggesting that “there is substantial evidence for genetic influence on sexual orientation.” 9

We are, of course, aware of evidence that inheritance explains susceptibilities to certain diseases like some cancers and some other illnesses like diabetes mellitus. There are also theories and some evidence that inheritance is a factor in susceptibilities to various behavior-related disorders like aggression, alcoholism, and obesity. It is easy to hypothesize that inheritance plays a role in sexual orientation. However, it is important to remember, as conceded by two advocates of this approach, that “the concept of substantial heritability should not be confused with the concept of inevitable heritability. … Most mechanisms probably involve interactions between constitutional predispositions and environmental events.” 10

Wherever they fall along the spectrum between outright rejection and total acceptance of biological determinism of sexual orientation, most scientists concede that the current evidence is insufficient and that firm conclusions must await many additional scientific studies.

A study of fifty-six pairs of identical male twins in which one twin classified himself as “gay” reported that 52 percent of the co-twins also classified themselves as gay. 11 A similar study of female identical twins yielded approximately the same proportion of co-twins who classified themselves as gay (thirty-four of seventy-one pairs, 48 percent). 12 If these studies show some inherited influence on whatever causes a man or woman to classify himself or herself as homosexual or lesbian, it is clear that this influence is not determinative. As a prominent scientist observed, “Even the identical twin of a gay man has a 50 percent or more chance of being heterosexual—even though he has the exact same genes and is reared by the same parents.” 13 We should also note that the results of these studies (and others described below) are based on the subjects’ self-classifications, a shaky foundation for scientific conclusions when “there is still no universally accepted definition of homosexuality among clinicians and behavioral scientists—let alone a consensus regarding its origins.” 14

In any emerging area of knowledge, a new source of evidence is most welcome. In July 1993, Dr. Dean Hamer made worldwide headlines when he announced that he had found “a statistically significant correlation between the inheritance of genetic markers [an identifiable strip of DNA] on chromosomal region Xq28 and sexual orientation in a selected group of … homosexual men and their relatives over age 18.” In other words, “it appears that Xq28 contains a gene that contributes to homosexual orientation in males.” 15 Putting the most positive interpretation on his discovery, Dr. Hamer’s subsequent book concludes:

“We can make only educated guesses about the importance of Xq28 in the population at large. On the high side, the region couldn’t possibly influence more than 67 percent of gay men, the proportion ‘linked’ to this region in our highly selected group of gay siblings. On the low side, if much of homosexuality is caused by environmental factors, or by a large number of interacting genes, Xq28 could account for as little as a few percent of the variation in male sexual orientation. The median range, taken from our linkage data and from the available twin and family studies, suggests that Xq28 plays some role in about 5 to 30 percent of gay men. The broad range of these estimates is proof that much more work remains to be done.” 16

“Some role in about 5 to 30 percent” of self-classified “gay” men surely falls far short of justifying the claim that science has shown that “homosexuality” is “caused by” genetic inheritance. One eminent scientist identified two of the uncertainties:

“What evidence exists thus far of innate biological traits underlying homosexuality is flawed. … Confirmation of genetic research purporting to show that homosexuality is heritable makes clear neither what is inherited nor how it influences sexual orientation.” 17

In their impressive reappraisal of biologic theories of human sexual orientation, Drs. Byne and Parsons of Columbia University’s Department of Psychiatry offer these important cautions and suggestions:

“It is imperative that clinicians and behavioral scientists begin to appreciate the complexities of sexual orientation and resist the urge to search for simplistic explanations, either psychosocial or biologic.

“Conspicuously absent from most theorizing on the origins of sexual orientation is an active role of the individual in constructing his or her identity. … We propose an interactional model in which genes or hormones do not specify sexual orientation per se, but instead bias particular personality traits and thereby influence the manner in which an individual and his or her environment interact as sexual orientation and other personality characteristics unfold developmentally.” 18

This observation, but one of many suggestions from scientists, is particularly persuasive because it takes account of the vital element of individual choice that we know to be a true principle of our mortal condition.

That last section is most important as it seems to suggest that in order to more fully understand sexuality, scientists must observe the “active role of the individual in constructing his or her identity.” The doctor continues, “We propose an interaction model in which genes or hormones do not specify sexual orientation per se, but instead bias particular personality traits and thereby influence the manner in which an individual and his or her environment interact as sexual orientation and other personality characteristics unfold developmentally.” This particular doctor comes to the conclusion that a better understanding of sexuality will come if we observe the choices either the individual makes, or the environment in which the individual resides makes for the individual.

So does the individual have a choice? It is my understanding from my own research and experience that, yes, an individual does indeed have a choice. Was an individual born with homosexual tendencies? The science is inconclusive in this respect, but from scriptural sources, we know that each of us will have a “thorn in our side,” something that will afflict us, a weakness wherein the Lord will test our resolve. Does this alter our own agency to choose? No. In the end, it is our choice to participate in one activity or another. There are very few beings on this earth who can, when they go to the Judgment Bar, claim they had absolutely no choice in their actions on earth: little children and mentally handicapped individuals.

Does this justify any gay-bashing, homosexual hating vitriol? not in the least. Elder Oaks adds:

Each member of Christ’s church has a clear-cut doctrinal responsibility to show forth love and to extend help and understanding. Sinners, as well as those who are struggling to resist inappropriate feelings, are not people to be cast out but people to be loved and helped (see 3 Ne. 18:22–23, 30, 32). At the same time, Church leaders and members cannot avoid their responsibility to teach correct principles and righteous behavior (on all subjects), even if this causes discomfort to some.

Church leaders are sometimes asked whether there is any place in The Church of Jesus Christ of Latter-day Saints for persons with homosexual or lesbian susceptibilities or feelings. Of course there is. The degree of difficulty and the pattern necessary to forgo behavior and to control thoughts will be different with different individuals, but the message of hope and the hand of fellowship offered by the Church is the same for all who strive.

I tried to describe the crucial distinctions in my answer to the television reporter who implied that the Church taught that “these people are somehow pariahs.” I said:

“The person that’s working [to resist] those tendencies ought not to feel himself to be a pariah. Now, quite a different thing is sexual relations outside of marriage. A person engaging in that kind of behavior should well feel guilt. They should well feel themselves estranged from God, who has given commandments against that kind of behavior. It’s not surprising to me that they would feel estranged from their church. What surprises me is that they would feel that the Church can revoke God’s commandments. … To the woman taken in adultery (which is a pretty good precedent for us), … [the Savior] was merciful and loving … , but he said, ‘Go thy way and sin no more.’ He loved the sinner; he condemned the sin. I think the Church does the same thing, imperfectly perhaps, but that’s what we teach our members: love the sinner, condemn the sin.” 21

The struggles of those who are troubled by same-sex attraction are not unique. There are many kinds of temptations, sexual and otherwise. The duty to resist sin applies to all of them.

The most important help the Church can offer to persons who have surrendered to sin or to those who are struggling to resist it is to fulfill its divine mission to teach true doctrine and administer the divine ordinances of the restored gospel. The gospel applies on the same basis to everyone. Its central truth is our Savior’s atonement and resurrection, that we might have immortality and eternal life. To achieve that destiny, an eternal marriage is the divine and prescribed goal for every child of God, in this life or in the life to come. Nevertheless, this sacred goal must come about in the Lord’s way. For example, President Gordon B. Hinckley has declared that “marriage should not be viewed as a therapeutic step to solve problems such as homosexual inclinations or practices.” 22

Through Christ and his church, those who struggle can obtain help. This help comes through fasting and prayer, through the truths of the gospel, through church attendance and service, through the counsel of inspired leaders, and, where necessary, through professional assistance with problems that require such help. Another important source of help is the strengthening influence of loving brothers and sisters. All should understand that persons (and their family members) struggling with the burden of same-sex attraction are in special need of the love and encouragement that is a clear responsibility of Church members, who have signified by covenant their willingness “to bear one another’s burdens” (Mosiah 18:8) “and so fulfil the law of Christ” (Gal. 6:2).

The first principle of the gospel is faith in the Lord Jesus Christ, who gives us the light and the strength to overcome the obstacles of mortality and to use our God-given agency to choose the behavior that will lead us to our divine destiny. We are promised: “There hath no temptation taken you but such as is common to man: but God is faithful, who will not suffer you to be tempted above that ye are able; but will with the temptation also make a way to escape, that ye may be able to bear it”

Anyone bashing gays are not following the Gospel of Jesus Christ. The Gospel of Jesus Christ is about reaching out to those in need, whether they know it or not. As Paul stated, if ye have not charity, ye are nothing.

What does all this have to do with the legality side of the argument?

The simple answer is that gay rights activists want to legalize immoral behavior, have immoral behavior be state sanctioned. Their political opponents then say, fine, we’ll then work on legalizing moral behavior. If I have to choose between the two, which do you think I am choosing?

The more complex answer is this.

Encouraged by the various pushes for civil rights for different groups since the 1960s, gay rights activists have been using the same arguments to get gays “equal rights.” For the most part they have succeeded, so today it is very hard for employers to discriminate against someone based on their sexual preference. They always had the right to vote, but they could not get rights usually afforded to families, because legally speaking what is a family? it is a husband and wife legally married with children.

What people like Mr. Ehrich do not tell you is that gay rights activists also use the Constitution and the legal system as their justification for state sanctioning gay marriage. In the state of Massachusetts, did gay rights activists go to the legislators to create a law that allowed full benefits to gay couples? No. They used sophist lawyers to change the opinion of judges to add to an existing law what was not there before. If in fact gay marriages were possible in the state of Massachusetts before this ruling, why was there no mention in the existing laws to designate such a scenario?

Judges are rightfully ordered to interpret the law. So if a judge interprets a law that the people feel is not what they intended in the language, are the people in their right to then order the legislators to change the law to reflect their real desires?

Seth, you claim that those who push for this amendment are “hateful.” Have you looked at it from their perspective though? Look through their eyes. They look at history and common sense tells them marriage is only between a man and a woman. They are not well versed enough to know the full history of marriage, of the multitudes of problems marriage has had over the millenia, but they know of no time in history when marriage was ever considered possible between a man and a man or a woman and a woman. They see the Founding Fathers who wrote the Constitution and see men who did not anticipate this question ever arising. In fact, if we look at what the Founding Fathers said and wrote about homosexuality, what do you find? How about this from Thomas Jefferson, in his A Bill For Proportioning Crimes and Punishments:

Whosoever shall be guilty of Rape, Polygamy, or Sodomy with man or woman shall be punished, if a man, by castration, if a woman, by cutting thro’ the cartilage of her nose a hole of one half inch diameter at the least.

Look at what General Washington did with someone caught attempting sodomy:

At a General Court Martial wereof Colo. Tupper was President (10th March 1778), Lieutt. Enslin of Colo. Malcom’s Regiment [was] tried for attempting to commit sodomy, with John Monhort a soldier; Secondly, For Perjury in swearing to false accounts, [he was] found guilty of the charges exhibited against him, being breaches of 5th. Article 18th. Section of the Articles of War and [we] do sentence him to be disniss’d [from] the service with infamy. His excellency the Commander in Chief [Washington] 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; The drummers and fifers [are] to attend on the Grand Parade at Guard mounting for that Purpose.

George Washington, The Writings of George Washington, John C. Fitzpatrick, ed. (Washington, U.S. Government Printing Office, 1934), Vol. XI, pp.83-84, from General Orders at Valley Forge on March 14, 1778.

What would George Washington have said if the writers of the Constitution would have intended gays to legally married?

This writer discusses the issue of homosexuality in the military, but he does also quote many of the Founding Fathers and their views or laws on homosexuality. Take a look at the following from William Blackstone’s Commentaries on the Laws of England:

What has been here observed . . . [the fact that the punishment fit the crime] ought to be the more clear in proportion as the crime is the more detestable, may be applied to another offence of a still deeper malignity; 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]. It will be more eligible to imitate in this respect the delicacy of our English law which treats it in its very indictments as a crime not fit to be named; “peccatum illud horribile, inter christianos non nominandum” (that horrible crime not to be named among Christians). A taciturnity observed likewise by the edict of Constantius and Constans: “ubi scelus est id, quod non proficit scire, jubemus insurgere leges, armari jura gladio ultore, ut exquisitis poenis subdantur infames, qui sunt, vel qui futuri sunt, rei” (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)

He then quotes several states and their laws regarding homosexuality:

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. 9 NEW YORK

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. 10 CONNECTICUT

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. 11 GEORGIA

That if any man shall commit the crime against nature with a man or male child . . . every such offender, being duly convicted thereof in the Supreme Judicial Court, shall be punished by solitary imprisonment for such term not exceeding one year and by confinement afterwards to hard labor for such term not exceeding ten years. 12 MAINE

That if any person or persons shall commit sodomy . . . he or they so offending or committing any of the said crimes within this province, their counsellors, aiders, comforters, and abettors, being convicted thereof as above said, shall suffer as felons. 13 [And] shall forfeit to the Commonwealth all and singular the lands and tenements, goods and chattels, whereof he or she was seized or possessed at the time . . . at the discretion of the court passing the sentence, not exceeding ten years, in the public gaol or house of correction of the county or city in which the offence shall have been committed and be kept at such labor. 14 PENNSYLVANIA

[T]he detestable and abominable vice of buggery [sodomy] . . . be from henceforth adjudged felony . . . and that the offenders being hereof convicted by verdict, confession, or outlawry [unlawful flight to avoid prosecution], shall suffer such pains of death and losses and penalties of their goods. 15 SOUTH CAROLINA

That if any man lieth with mankind as he lieth with a woman, they both shall suffer death. 16 VERMONT

I quote those not with the purpose of agreeing with them, but to prove a point. Do you think, upon reading these that the Founding Fathers intended the Constitution of the United States to allow gay marriages? If it was an issue back then, do you not think, based on reading their own words, that they would have easily made a provision in the Constitution, (just like they had with slavery), that would have barred even the possibility of gay marriages?

Judges are to interpret the “intent” of a law, right? What was the “intent” of the Constitution in regards to rights gays are to have? Can you honestly tell me that the writers of the Constitution would have given gays any rights, especially marriage rights, if that was an issue back then?

So now that today we have judges who interpreted the intent of a law being that it somehow allows state sanctioning gay marriage, what is wrong with going back and clarifying that the original intent behind the Constitution clearly would not have allowed gay marriage?

Moreover, why do gay activists not go to lawmakers to create new laws that will clearly allow gay marriages, rather than try to re-interpret old laws that, upon looking back, clearly did not intend to identify a new group of legal relationships? The fact that they would instead try and force change from the judicial, which is not, according to the Federalist Papers, designed to implement new policy, shows that their reasonings are not as honest and sincere as they want to be portrayed. It shows that they realize they can never get the approval of a large enough segment of the population to allow gay marriages (evident in the slew of state laws passed recently barring gay marriages), so they circumvent the original method of creating new policy.

Can you honestly tell me, Seth, that judges are supposed to enact new laws?

The “intent” of the Constitution in regards to gay rights seems pretty clear based on the writings of the Founding Fathers in other regards, including state laws then in effect. If modern judges feel the Founding Fathers were not clear regarding this, then what is wrong with lawmakers today clarifying the intent of the Founding Fathers?

Many arguments are made about suffering and pain that some go through, as a just enough cause to use a clause or two of the Constitution to justify sanctioning some act. You state:

The morality that pushes people to decide that they are somehow “wrong” causes the injury.

But as is clear from the Founding Fathers, such as George Washington who hanged sodomists, merely feeling pain is not enough to change the law to accomodate the pain. It seems the intent of many laws passed by the Founding Fathers was to govern morality, even if it meant the loss of freedom for some.

There is far more to say, (volumes can be written on this subject), but I think this will do for now.

In conclusion, gays seem to think they have no choice in their sexual orientation, and beyond that, in their choice to act out their sexual desires. While it is not clear scientifically that indeed homosexuality is ingrown or environmentally learned, gays are incorrect when they say they do not have a choice in acting out their sexual desire. They do have a choice. Much like heterosexuals have a choice in becoming sexually active before marriage, or adulterous whilst married. All three are immoral because God said so. He is the final Judge on the issue of morality. All who think otherwise err. That said, people with homosexual tendencies should not be ostracized for their actions, or if they are, then so should heterosexuals who act immorally. Any who do so, any who gay-bash, are not understanding the Gospel of Jesus Christ.

Legally speaking, it is clear that the intent of the Founding Fathers was not for gays to even be sexually active. It is therefore a strong assumption that they also intended in the framing of the Constitution to not allow gays certain “rights.” Should the people feel otherwise, they have a process that is Constitutional for changing the will and intent of the Constitution, and that is the Legislative Branch. If the Judicial Branch feels the Founding Fathers were not clear on the issue, then the Legislative Branch can at its will, and the will of the people, clarify what the original intent was, or if they feel the original intent is no longer valid, they can change the tone of the law to reflect the new desires, (as was done in regards to slavery.) However, it is deceitful and insincere for some to use the Judicial branch to change the law and policies. It is also unconstitutional, as the Constitution makes clear which Branch is to create laws. It seems the intent of many laws passed by the Founding Fathers was to govern morality, even if it meant the loss of freedom for some.

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  1. Interesting counterpoint presented. It feels as if we are living in almost different worlds on a few points of this issue, so perhaps there is at least some benefit to me addressing some of the things that you raise. While I make no promises in this arena, I will try very hard not to simply rehash what I said before. My earlier posting covers a great deal of the territory fairly well.

    To begin, I am happy to concede that the injury and destruction to the family spoken of by the Right is indeed a “red herring” in the gay marriage debate, as long as everyone is clear that this red herring is the central argument being used by most everyone opposing the legalization of same sex unions. In other words, I specifically included it only to negate its force. That is, it is imperative that we are all clear that this is not my red herring; I did not create a straw man to attack. I simply went at the dominant argument of the senators speaking in favor of constitutionally enshrined discrimination. And if you observe the statements of Santorum, Brownback, and their ilk, you will see precisely what I mean.

    As a moral argument, many of the early points you make are potentially forceful, Dan. However, it is imperative to recognize that, necessarily, morality can only play the most limited role in a society founded under the rule of law. You see, despite your easy presentation, there is no one fixed morality. I am not questioning your interpretation of LDS morality, only emphasizing that to the largest extent, each member of American society has his or her own moral compass. To use the easiest example, most Americans, even those that consider themselves Christians, are not only not Mormon; they do not even accept most of that particular faith’s precepts.

    Again, this is not to suggest that morality has no place under the rule of law. It is merely to explain that any role that it has must be circumscribed. To do otherwise is to risk the plurality that forms the very fabric and underlies the promise of American society. Even though most Americans identify themselves as Christians, they cannot agree on one right and one wrong on most issues. For this reason, even the moral judgment of the majority is troubling as a guide for laws, especially civil rights laws.

    That the Framers established (no pun intended) a Constitution that explicitly removed reference to God and religion (with the exception of the First Amendment) is no accident in this regard. These were men who had a family history that included religious and moral persecution at the hands of the governmental religion, as well as the religion of the majority, and they were bent on creating a society ruled under Enlightenment principles of the secular rule of law. God would be a personal expression in this context, rather than a state posture.

    To the notion of the “rightness” or “wrongness” of the constitutional amendment, the fact that this must be grounded primarily on your personal morality leaves me with the feeling that much of the heft that such an argument might have is perforce dissipated.

    I would also question your assertion that homosexuality is a description of behaviors. In fact, if you consult the vast majority of gay literature or speak with homosexuals, one of the things that you will recognize is that this is about sexual identity, not sexual practices. This is what allows for the presence of celibate homosexuals. Without leaning too hard on this one aspect, it is clearly observable that most gays do not see their sexual identity in as limited a way as you proffer.

    It is not compulsive, nor is it necessarily a choice. It is certainly true that we are each born with certain predilections, and also that the environment shapes us at least as profoundly as biology. And I will concede that the science of homosexuality is not yet sufficiently advanced that we can know one way or the other precisely how much of the choice is nature and how much is nurture. But you do a disservice to the realities of the complex of thoughts, feelings, and identity of homosexuals when you insist that this is a conscious choice that they make; and that they can choose not to indulge. I would encourage you to examine the destructive impact of closeted identity throughout American history up until very near the present day to see what denial of true self has wrought on gay culture.

    And if homosexuality is about identity, not solely about behavior, then asking people to deny this profound aspect is to ask them to live as incomplete people. It is much deeper than merely sexual impulse, Dan. Without the possibility of the sanction of marriage, there is no way for homosexuals to engage in any sexual behavior without either lying and destroying the lives of themselves and others (if they deny their true selves and marry a member of the opposite sex) or still living the life of the unmarried fornicator (whether as gay monogamists or otherwise). Sexuality is a key aspect of human life. In this respect, the push of the pro-same sex marriage movement is about equality; and from my perspective, if this means fostering a deeper level of acceptance of the lifestyle, so much the better. But I recognize that your particular version of morality means that we disagree on this point.

    I suppose that when you express homosexuality as a “thorn” in the side of the individual, then you have already decided, and already elected to condemn the behavior. This is the expression of your personal morality, but seems hardly provable or even necessarily valuable in the evaluation of the civil rights of others.

    This last point leads directly to the examination of precisely why it is that the gay rights groups are using the Constitution to support their push for same sex marriage. As you suggest, these groups rightly observe that broad support in the general population is simply not there, just as it was not there for blacks during the early days of the modern civil rights movement; and it was during this period that the Court actually led the executive and the legislative branch on the issue by offering an expansive view of the 14th Amendment. The homosexual community strongly identifies with this previous push for civil rights.

    The short answer to your interpretation of the role of the judiciary is that it gives short shrift to the organic quality of the Constitution. It is always handy, albeit reductionist, to describe the role of judges as merely interpreting the law, not creating positive law. This is where Schlafly, et al, get their juices going about “strict constructionist” judges, “activist judges” and the like. I am afraid that the reality is considerably more complex.

    You see, the Constitution is a document riddled with intentional ambiguities which allow it to speak anew to each subsequent generation of Americans. And the interpretation of the document must necessarily change with the times. I recognize that there is a certain simple charm in thinking that there is one plain meaning to passages or that the Constitution says what it means or covers all the bases; or that we should follow the intent of the Framers in interpreting the document; but I do not feel that any of these is necessary nor do I find any of these postures correct. That is, this is an area where intelligent minds can differ. On the one side, there are jurists such as Oliver Wendell Holmes, who described the document as organic, and on the other side, there are those, especially Clarence Thomas, who would literally read the document as if they were 18th Century men (this is especially ironic given what this posture would mean for Thomas personally, but I digress).

    These ambiguities, and the expansive, organic nature of their interpretation, make this the best location to ground the rights that same sex couples are seeking. They are asking to invoke the Equal Protection and Due Process Clauses of the 14th Amendment, and to be given suspect class status under the former, while being allowed the right to intimate associations sanctioned by legal marriage under the latter (a substantive due process argument). No state-made law can afford the same level of enshrined protections as would recognition under the Constitution.

    Of course, there is always the possibility that the interpretation of the Constitution will change, as it has over the years; but homosexual activists are probably correct when they observe that the march has been largely progressive, and only occasionally regressive. That is, they are likely right to feel that constitutional protection will afford them the greatest freedom, as well as the greatest protection.

    Without belaboring legal arguments, the reason that the federal Constitution, as opposed to state constitutions, has to be the final battleground for the right is because of the Full Faith and Credit Clause. In a nutshell, this clause states that each of the several states shall recognize contractual arrangements entered into in any other state. Marriage is a legal contract. So if one state, such as Massachusetts, legalizes gay marriage, then theoretically any same sex couple from Massachusetts that is married should have their marriage recognized by any other state to which they subsequently relocate and domicile (DOMA notwithstanding, and the best guess is that DOMA will fall in the face of constitutional challenge). If gay marriage is to be accepted from one state in all other states, it is most likely the case that all states will need to allow same sex unions, as well. In any event, it will foster the greatest legal consistency to have one rule in this area.

    It might seem comforting to consider the role of the so-called “activist judges” freely interpreting the Constitution and/or creating positive laws. That you describe this as unconstitutional on their part is largely unproblematic; however, most of the reason for this is that your argument is largely tautological. After all, the federal judiciary is indeed the “last word” on issues of constitutional interpretation. Laws and especially the Constitution are often sufficiently ambiguous that judicial interpretation and clarification can indeed look like the creation of positive law, but that is rarely what it is. Especially under the 14th Amendment, what you are really seeing is a judicial determination of inherent, one might even say embedded, rights lurking within the Constitution. This document contains more than mere positive rights after all, and is filled with tension and ambiguity designed to propel intellectual examination and soul searching on the part of the interpreter.

    As far as the historical arguments are concerned, again my earlier post speaks pretty clearly to my position on this element. Suffice it to say that, while history is significant, especially to a substantive due process analysis, it actually militates against your position under the equal protection analysis.

    To use the simplest example, consider that the Founders that you choose to hold out as examples of their contemporary mores, exemplars in their own right, each was a slave owner. And remember that slavery was considered a God-given right at the time. When I suggest that the civil rights arguments are the most profound corollary for same sex marriage, this is one of the reasons why. In other words, to me it simply does not matter that the Framers intended or did not intend for gays to have the right to marry. These same Framers clearly did not intend for either blacks or Native Americans to have rights of citizenship, or even complete humanity. They also did not intend for any non-landed, non-Christian, non-white, non-men to enjoy full privileges of national identity, voting rights, and the like, and we have systematically jettisoned each of these wrong-headed notions.

    When morality rears its ugly head again in your response, it is as support for the laws which form the basis for society. Again, unlike some of my liberal peers, I will not go so far as to say that morality has no place in the formation of laws. Indeed, to assert such to me seems disingenuous. What I will again suggest is that morality is just about all your position has to support it, and that this, without more compelling reasons, is quite frankly not enough. Morality, which is personal, not fixed, is simply too flexible as a grounding principle to justify the exclusion of an entire, cognizable class of society from the full rights and privileges of marriage simply because their expression of love is personally distasteful to you.

    It seems especially ironic in a country literally founded on principles of privacy, autonomy, and plurality, that there is even an issue as to the rights of two consenting adults otherwise amenable to legal marriage to enter into a same sex union with one another if this is how they choose to express their identity. Finding otherwise can hardly be considered a liberal position, in any event. Of course, it is easy for you or me to limit the freedom of homosexuals in this way, as doing so does not directly affect either of us. But the more expansive, inclusive America that I am seeking would allow homosexuals to enjoy all the rights and privileges enjoyed by their more prevalent heterosexual peers.

    -


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