Texas sodomy and the marriage amendment

Posted: Jul 11, 2003 12:00 AM

There is a bill currently languishing in Congress that proves our society is slowly eroding. The bill, sponsored by Rep. Marilyn Musgrave (R-Colo.), proposes a constitutional amendment that would legally bar same-sex marriages. The proposal states: "Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution nor the constitution of any state under state or federal law shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups."

The proposed amendment takes on special significance given the Supreme Court's recent ruling that states may not criminalize homosexual sodomy. In striking down a Texas sodomy law, the court proclaimed in no uncertain terms that being gay is not a crime.

Very good. But does that mean that the state cannot punish those acts which it deems immoral? If so, then the Texas sodomy decision threatens to lead this country down a slippery slope.

Does the right to pursue one's individual morality transcend traditional social values? Is the state barred from enforcing the moral consensus? More to the point, is this a land where pornography, drugs and prostitution should be unregulated, where women should be allowed to have abortions at any time during their pregnancy, where same-sex couples can join together in marriage? If you accept that the state cannot enforce moral codes of conduct, then the answer to all of these questions is yes. It is against this backdrop that the Texas Sodomy ruling will unfold.

This point was not lost on Justice Antonin Scalia whose dissenting opinion accused the court of using judicial fiat to shape civil institutions - such as marriage - that have traditionally been regulated by the state. Scalia accused the majority of signing on to the homosexual agenda and effectively choosing sides in the culture war. He warned that the majority opinion could lay the legal framework for questioning all state laws that punish moral indiscretions, such as bigamy, incest and prostitution.

In short, Scalia made the profound observation that since state law creates our civil institutions, they ought to be managed by the state; excepting action that violates the Constitution. The founding fathers had very definite ideas on such matters. When they created this country, the founding fathers envisioned the state government as arbiters of much of our daily existence. The benefits of an extensive state government were straightforward: the state government would be more directly accountable to the concerns of the citizens and, therefore, better able to ensure the democratic process. This would provide a counterbalance to the federal government and help guard against the tyranny that our founding fathers so feared.

By stepping in and dictating how the state government regulates its civil institutions, the unelected, unaccountable Supreme Court justices have trampled on the democratic process. Rather than allowing the citizens of this country to carry out a debate on the morality of same-sex unions and to decide these issues for themselves, the Supreme Court has dictated the outcome.

We need not accept this rather tyrannical intrusion. There are, in fact, some very practical things our democratically-elected representatives can do to help ensure that the citizens of this country continue to have a voice in the culture war that is raging around them. For starters, they can lend public support to Rep. Musgrave's proposal to define marriage as a union between man and woman.

Senate Majority leader Bill Frist (R-Tenn.) has already done this, telling ABC's "This Week" program, "I very much feel that marriage is a sacrament and that sacrament should extend and can extend to that legal entity of a union between what (has) traditionally in our Western values been defined as between a man and a woman. So I would support the amendment."

For this very common sense statement Frist is being assaulted by the gay rights Cosa Nostra. They accuse Frist of gay bashing, but they miss the point. Frist's remarks were not about anger or spite. They were simply about recognizing the social and sacred function of marriage between man and woman. This is the bedrock of our society. On this point, we must maintain our resolve. Because it seems that those men - and woman - who are the most vigorous defenders of this country's Constitution, the Supreme Court justices, have no intention of defending the state's rights to manage civil institutions. The court remains hamstrung by the unwavering belief that the state cannot punish that which it deems immoral.

It is this same stance that may lead the court to revisit all state laws that punish acts such as bigamy, incest and prostitution. It would be nice if the Supreme Court could find some way to consider the democratic process they purport to defend. Instead, they have chosen a far more precarious position. They are, at once, the most visible protectors of our Constitution, and a passive destroyer of our society.