Should All Laws Based on Morality Now Be Considered Unconstitutional?

August 12, 2010

Judge Vaughn Walker, Chief Judge of the United States District Court of Northern California may not have realized it, but on Monday he made history.

The decision to invalidate Proposition 8, a measure approved by California voters in November, 2008 to ban gay marriage and affirm the definition of marriage as a union between a man and a woman, didn’t come as much as a decisive blow against traditional marriage, as it was an assault on democratic government itself.

In responding to constitutional arguments of the plaintiffs, the judge denied that there was a rational basis for proponents  of Proposition 8’s claim that it would promote more marriage, less divorce, procreation and social stability.

” Permitting same sex couples to marry will not affect the number of opposite -sex couples, who marry, divorce, co-habit, have children outside of marriage or otherwise affect the stability of opposite sex marriage.”   he stated in his opinion.

More ominously he attacked the very basis of biological differences between the sexes:

“The ban on gay marriage exists as  an artifact of time, when the genders were seen as having distinct roles in society and marriage.   That time has passed.  Gender no longer forms an essential part of marriage.  Marriage under law is a union of equals. “

It was the final sentence that was so significant.  Issues of morality did not play into Judge Walker’s decision.  Law, Walker seems to be saying, is not informed by morality, but by what is rational and of utility in modern society.

Walker’s position, in line with general secular views in our society, is that because there is no such thing as a generally accepted moral values, moral arguments have no place in a court of law.

But it is a travesty to declare the United States constitution only a rational document.   It is most certainly also a moral document, informed by the deep Christian values of the men who wrote it and guided by their vision of a society built on Judeo-Christian principles.

The founding fathers would almost certainly not have considered the extension of constitutional protections to a minority when its moral conduct vitiated against generally accepted public views of that conduct.  To argue otherwise is to indulge in a revisionism that is intellectually dishonest and historically inaccurate.

The defendants in the  Perry vs Schwarznegger, were therefore at a distinct disadvantage when presenting their case.   Debarred as they were from presenting moral arguments, they failed to present the scenarios which are likely to unfold in the event that Proposition 8 is eventually  invalidated.

Some of these include:

  • That public schools in the future would be required, at the risk of penalty, to present students with the efficacy and viability of a variety of alternative lifestyles from homosexual to transgender to pederast.
  • That private institutions and associations such as synagogues, churches, boy scouts  and private clubs will come under increasing pressure to conform to legal standards for the acceptance of minority rights – and be forced to change their own rules and principles or else risk both legal sanction and law suits.
  • That denying the legitimacy of a gay lifestyle will soon come to be seen on the same level as antisemitism.
  • That the very foundation of our own civilization – the bond between a man and a woman-  is now under assault since the gay community has far less interest in obtaining marriage licenses ( the vast majority of homosexuals have absolutely no interest in marriage) as they do in obtaining the stamp of legitimacy for their lifestyles and conduct.

It seems passe these days to declare that the viability of a modern democracy depends on a a generally accepted moral outlook. Yet it is nonsense to argue that strict adherence to the legal framework elucidated by the constitution alone  is enough to hold our polity together.   It must be informed by morality.

In November, 2008 the people of California, by a clear majority, voiced their opinion that morality was a significant element in the construction of  American democracy.

It will inevitably fall to our judges in the highest court of the land to now determine if they were right.  Lets hope that they show a little more prudence and insight into the workings of democratic government – and an understanding of the American people –  than was demonstrated by Judge Vaughn Walker in San Francisco this week.

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