Michael Gaynor
June 5, 2006
"Gay marriage," America's founders, and Presidents Clinton and Bush
By Michael Gaynor

The date is set: June 6, 2006. 6 6 6. The date on which the United States Senate is scheduled to vote on a constitutional amendment to protect marriage. The people who founded America and wrote and ratified its Constitution had great foresight, but they did not imagine that it would ever be necessary to define marriage in the Constitution. But shortly after World War II, the United States Supreme Court twisted the First Amendment beyond recognition by misrepresenting it as requiring governmental neutrality between religion and irreligion and prohibiting governmental support of religion generally. Behavior that had been deemed to be criminal abortion and sodomy eventually were deemed to be constitutionally protected by activist judges.

The Clinton years involved a tragic downward spiral on the morality front. Polling on the question of whether homosexuality is an acceptable lifestyle in 1992, when Clinton was elected President, and now, shows that acceptance has increased substantially. In part because President Clinton supported ONLY a federal law to protect marriage, not a constitutional amendment.

Webster's Ninth New Collegiate dictionary defines marriage as "the mutual relation of husband and wife" and "the institution whereby men and women are joined in a special kind of social and legal dependence for the purpose of founding and maintaining a family."

Of course, homosexual, lesbian or same-sex unions are not marriages Because marriage requires one man and one woman. But, Humpty Dumpty told Alice, in Wonderland: "A word means precisely what I want it to mean, neither more nor less." So many homosexuals and lesbians are demanding that marriage be redefined to include their unions. They cleverly claim to be arbitrarily excluded. But it is they who are being arbitrary. They have found some success with some activist judges, but not with most voters.

President Bush, human and therefore imperfect, remains much better than his predecessor or the alternatives offered by the Democrats in 2000 and 2004. Especially on fundamental moral issues.

Set forth below in full are President Bush's recent remarks reiterating his support for a constitutional amendment to protect marriage instead of to permit its mockery.

"Good morning. Eight years ago, Congress passed, and President Clinton signed, the Defense of Marriage Act, which defined marriage for purposes of federal law as the legal union between one man and one woman as husband and wife.

"The Act passed the House of Representatives by a vote of 342 to 67, and the Senate by a vote of 85 to 14. Those congressional votes and the passage of similar defensive marriage laws in 38 states express an overwhelming consensus in our country for protecting the institution of marriage.

"In recent months, however, some activist judges and local officials have made an aggressive attempt to redefine marriage. In Massachusetts, four judges on the highest court have indicated they will order the issuance of marriage licenses to applicants of the same gender in May of this year. In San Francisco, city officials have issued thousands of marriage licenses to people of the same gender, contrary to the California family code. That code, which clearly defines marriage as the union of a man and a woman, was approved overwhelmingly by the voters of California. A county in New Mexico has also issued marriage licenses to applicants of the same gender. And unless action is taken, we can expect more arbitrary court decisions, more litigation, more defiance of the law by local officials, all of which adds to uncertainty.

"After more than two centuries of American jurisprudence, and millennia of human experience, a few judges and local authorities are presuming to change the most fundamental institution of civilization. Their actions have created confusion on an issue that requires clarity.

"On a matter of such importance, the voice of the people must be heard. Activist courts have left the people with one recourse. If we are to prevent the meaning of marriage from being changed forever, our nation must enact a constitutional amendment to protect marriage in America. Decisive and democratic action is needed, because attempts to redefine marriage in a single state or city could have serious consequences throughout the country.

"The Constitution says that full faith and credit shall be given in each state to the public acts and records and judicial proceedings of every other state. Those who want to change the meaning of marriage will claim that this provision requires all states and cities to recognize same-sex marriages performed anywhere in America. Congress attempted to address this problem in the Defense of Marriage Act, by declaring that no state must accept another state's definition of marriage. My administration will vigorously defend this act of Congress.

"Yet there is no assurance that the Defense of Marriage Act will not, itself, be struck down by activist courts. In that event, every state would be forced to recognize any relationship that judges in Boston or officials in San Francisco choose to call a marriage. Furthermore, even if the Defense of Marriage Act is upheld, the law does not protect marriage within any state or city.

"For all these reasons, the Defense of Marriage requires a constitutional amendment. An amendment to the Constitution is never to be undertaken lightly. The amendment process has addressed many serious matters of national concern. And the preservation of marriage rises to this level of national importance. The union of a man and woman is the most enduring human institution, honoring honored and encouraged in all cultures and by every religious faith. Ages of experience have taught humanity that the commitment of a husband and wife to love and to serve one another promotes the welfare of children and the stability of society.

"Marriage cannot be severed from its cultural, religious and natural roots without weakening the good influence of society. Government, by recognizing and protecting marriage, serves the interests of all. Today I call upon the Congress to promptly pass, and to send to the states for ratification, an amendment to our Constitution defining and protecting marriage as a union of man and woman as husband and wife. The amendment should fully protect marriage, while leaving the state legislatures free to make their own choices in defining legal arrangements other than marriage.

"America is a free society, which limits the role of government in the lives of our citizens. This commitment of freedom, however, does not require the redefinition of one of our most basic social institutions. Our government should respect every person, and protect the institution of marriage. There is no contradiction between these responsibilities. We should also conduct this difficult debate in a manner worthy of our country, without bitterness or anger.

"In all that lies ahead, let us match strong convictions with kindness and goodwill and decency."

The key point: "Marriage cannot be severed from its cultural, religious and natural roots without weakening the good influence of society. Government, by recognizing and protecting marriage, serves the interests of all."

The problem, of course, is secular extremism run amok.

Reverend J. Grant Swank, Jr. summarized the situation confronting the United States Senate sensibly, strongly and succinctly:

"All morality is at stake now and for the future.

"God has given to us the definition of marriage. God states in His divine revelation that a man shall leave his parents to be joined unto his wife, the two becoming one flesh.

"God also states that practicing homosexuality is an abomination.

"For the United States to counter God is to ask for the wrath of the divine to come our nation. God abides by His own holy nature; He will and must act according to who He is. Therefore, divine judgment in condemnation will come upon those who purposefully disobey God. Judgment of commendation will come upon those who purposefully obey God.

"All moral individuals in America must contact their Congressmembers about this issue now. The time is short. Ask them to vote for the Marriage Protection Amendment.

Unsurprisingly, a substantial majority of Senate Republicans are co-sponsored the proposed constitutional amendment to protect marriage and is opposed by an even bigger majority of Senate Democrats, led by Senator Edward M. Kennedy of Massachusetts, the state with an activist judiciary that whimsically decided to recognize "gay marriage" as a right instead of an oxymoronic wrong. This is the same Senator Kennedy who supports abortion as a constitutional right, yet professes to be a Roman Catholic instead of admitting to being a heretic who has excommunicated himself by his perverse political choices.

The message for all good people: support candidates who support marriage instead of mock it.

A constitutional amendment will stop homosexual marriage from becoming the law of the land, reaffirm the fundamental values on which America was founded, and protect America's youth and posterity.

George Washington and Thomas Jefferson would be for it.

The attitude of the Founders on the subject of homosexuality was expressed by William Blackstone in his Commentaries on the Laws the basis of legal jurisprudence in America. In addressing sodomy (homosexuality), he found the subject

"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)."

George Washington, America's Father and first President (as well as President of the Constitution Convention), forbad and punished homosexual acts in his capacity as Commander-in-Chief of America's revolutionary forces. See his general orders for March 14, 1778:

"At a General Court Martial whereof 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 dismiss'd [from] the service with infamy. His Excellency the Commander in Chief 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."

No wonder the Founders never dreamed a definition of marriage needed to be included in the Constitution!

Jefferson and the other Founders distinguished between liberty and license and surely did not conceive of the pursuit of happiness as an authorization for "gay marriage."

Look at Jefferson's writings on sodomy.

Such as Jefferson's letter to Edmund Pendleton, written on August 26, 1776.

"The fantastical idea of virtue and the public good being a sufficient security to the state against the commission of crimes...was never mine. It is only the sanguinary hue of our penal laws which I meant to object to. Punishments I know are necessary, and I would provide them strict and inflexible, but proportioned to the crime. Death might be inflicted for murder and perhaps for treason, [but I] would take out of the description of treason all crimes which are not such in their nature. Rape, buggery, etc., punish by castration. All other crimes by working on high roads, rivers, gallies, etc., a certain time proportioned to the offence... Laws thus proportionate and mild should never be dispensed with. Let mercy be the character of the lawgiver, but let the judge be a mere machine. The mercies of the law will be dispensed equally and impartially to every description of men; those of the judge or of the executive power will be the eccentric impulses of whimsical, capricious designing man." Thomas Jefferson to Edmund Pendleton, 1776. Papers 1:505 (Emphasis added.)

Three years later, Jefferson drafted a bill concerning Virginia's criminal law providing that the penalty for sodomy should be castration. See Thomas Jefferson, The Writings of Thomas Jefferson, Andrew A. Lipscomb, ed. (Washington, Thomas Jefferson Memorial Association, 1904) Vol. I, pp.226-27, from Jefferson's "For Proportioning Crimes and Punishments."

The bill read: "Whosoever shall be guilty of rape, polygamy, or sodomy with a man or woman, shall be punished; if a man, by castration, a woman, by boring through the cartilage of her nose a hole of one half inch in diameter at the least." (Virginia Bill number 64; authored by Jefferson; 18 June 1779)(Emphasis added.)

When the Constitution was ratified, a majority of the states (New York, North Carolina, South Carolina, Connecticut, Virginia, Rhode Island, Massachusetts and New Jersey) provided the death penalty for those who committed sodomy. All states prohibited it.

What IS irrational is finding that the Constitution prohibits criminalizing behavior viewed as criminal by the people who drafted and ratified the Constitution.

© Michael Gaynor

 

The views expressed by RenewAmerica columnists are their own and do not necessarily reflect the position of RenewAmerica or its affiliates.
(See RenewAmerica's publishing standards.)

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Michael Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member... (more)

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