The Legal Basis for Considering Homosexual ‘Marriage’

Paul Benjamin Linton of the Thomas More Society has written a very interesting response to the Obama Administration’s decision a couple of months ago to not defend the Defense of Marriage Act (DOMA).  It exposes why I believe, and why it seems he also believes, Obama has “invoked the Constitution ‘as a pretext for what are, in fact, policy disagreements with the statute.’”

Linton’s paper sheds considerable light on a subject that, while simple on the face of it (human beings have instinctively grasped for thousands of years across the globe that marriage is between a man and  a woman), can appear more complicated in the arena of legal wrangling.

Unfortunately for homosexual activists, truth and reality–even in the legal realm–continues to afford them no legitimate assistance in their quest to counterfeit marriage.  Linton’s exegesis of the legal issues involved is damning not only to the claims made about supposed legitimacy of homosexual behavior in general, but even more so to the insistence of activists that they be allowed to counterfeit the most important relationship and institution in any society.

When President Barack Obama and Attorney General Eric Holder made the statement that they would no longer defend marriage, they also included the recommendation that legal requests from homosexual activists should receive specially favored consideration under the doctrine of “heightened scrutiny.”

In legal parlance, there is what is called and “heightened scrutiny.” Under rational understanding, the presumption is that the government is acting in a correct manner and the burden of demonstrating improper treatment is on the accuser. Under heightened scrutiny, there is assumed to be a likelihood or suspicion that the government is acting improperly or with unfair bias.

Homosexual activists believe their desire to counterfeit marriage should be considered by the government from a position of heightened scrutiny. In order for heightened scrutiny to apply, the Supreme Court has decided four factors must apply:

  • The group has historically been subjected to discrimination (with the implication being unfair discrimination–more on that distinction later)
  • Whether the group’s common characteristic has any bearing on their ability to contribute to society
  • Whether the group exhibits obvious or immutable characteristics that identify them as a distinct group
  • Whether they are politically powerless

He says that, “Contrary to the suggestion of the Attorney General (Holder Letter at 2-3), gays and lesbians satisfy only the first factor–they have been subjected to a history of discrimination–but not the other three.” I would also point out that not all discrimination is bad or wrong. While it is improper and illogical to discriminate on the basis of an innate, morally neutral physical characteristic (say skin color)–skin color does not affect intelligence, the ability to exercise good judgment, the ability to behave in a morally upright manner, to exhibit a solid work ethic, to provide pleasant company, etc.–we discriminate (and rightly so) on the basis of behavior all the time.

When our children misbehave, we discriminate (or make the distinction between) on the basis of behavior and punish them for their misbehavior, but we don’t punish them for having blue eyes, red hair, or yellow skin. When considering job candidates for a position in our business, we would rightly discriminate between the candidate who incessantly picked their nose during the interview, versus the one who behaved normally; we wouldn’t discriminate on the basis of one employee’s height of 5’10” versus another one’s height of 5’8″, or the fact that one candidate had brown eyes where another had green eyes. As an employer, we might properly discriminate between an employee who performs their duties according to requirements versus an employee who does a poor job; we would not discriminate between the employee who usually wears clothing with pastels versus patterns. In other words, discrimination (making the distinction between) on the basis of behavior is frequently appropriate. And though homosexuals try to deny reality, homosexual behavior is morally condemned by every major religion, is contrary to natural sexual behavior, and is repugnant to many people.

This portion addresses both the contribution which married couples make to society, and the welfare of children which are the natural result of the marriage relationship:

The sexual orientation of gays and lesbians clearly does not bear any relation to their “ability to perform or contribute to society” in most respects, but, in two critical respects, it does. Precisely because of their sexual orientation, gays and lesbians are generally unwilling to enter into a sexual relationship and/or a marriage with a member of the opposite sex. As a consequence, their sexual activity, by definition, cannot result in the birth of a child–intended or unintended. By the same token, a same-sex couple– whether married or unmarried–cannot give any children they may adopt (or have through assisted reproduction) the benefits having both a mother and a father in the home to nurture and raise them. But both state and federal courts have recognized that two of the legitimate interests for which the institution of marriage (and its benefits) exists and is protected by law are providing a stable social and familial environment in which procreation–intended or unintended–may take place, and providing the 6 benefits of dual-gender parenting for the children so procreated, interests expressly 7 identified in the House Report accompanying the Defense of Marriage Act.8 Same-sex unions promote neither interest…Accordingly, the sexual orientation of gays and lesbians does “bear [a] relation to [their] ability [or at least their willingness] to perform or contribute to society” with respect to two of the principal interests which traditional marriage is designed to serve, as several courts have recognized.9

Footnote 9 goes on to point out both the decades of research and experience (not to mention common sense) which shows children develop better in a home with both their biological mother and father, but also the flaws of so-called contradictory research which includes unrepresentative sampling populations, short observation times, unreliable data, and hypotheses which are infused with political agendas.

He also demolishes the fallacious argument often proffered by homosexual activists that they should be treated as a class like sex or skin color, rather than evaluated based on their behavior (behavior being the basis of homosexuality in the first place).

With respect to the third factor, unlike a person’s gender or race, a person’s sexual orientation is neither an obvious nor an immutable characteristic. Indeed, the Attorney General acknowledges that “sexual orientation carries no visible badge . . . .” Holder Letter at 3. As the Sixth Circuit Court of Appeals has noted: Those persons have a homosexual “orientation” simply do not, as such, comprise an identifiable class. Many homosexuals successfully conceal their orientation. Because homosexuals generally are not identifiable “on sight” unless they elect to be so identifiable by conduct (such as public displays of homosexual affection or self-proclamation of homosexual tendencies), they cannot constitute a suspect class or a quasi-suspect class because “they do not [necessarily] exhibit obvious, immutable, or distinguishing characteristics that define them as a group[.]”

There is also no medical or scientific consensus that homosexual behavior is genetically determined, nor is there any compelling evidence of this. Further, since homosexuals have been modifying their behavior both into the homosexual and out of the homosexual lifestyle for thousands of years, and continue to do so today, homosexuality cannot under any remote stretch of the imagination be considered an “immutable” characteristic. As countless individuals have proven, you can stop behaving homosexually, but you can’t stop being black, white, red, brown or yellow in skin color.

Finally, they definitely cannot be said to be politically powerless. Despite making up only 2.9% of the population, they have by their aggressive and vociferous lobbying convinced the APA to remove homosexual behavior from an official list of mental disorders purely on the basis of political pressure. Further, they have managed to convince a few state governments to allow them to counterfeit marriage, and have convinced various levels of government to consider dislike for a politically favored class of person to be a crime in itself which is punished with greater severity than the same crime committed against an ordinary citizen. For only 2.9% of the population to have convinced the majority to abandon thought, reason and morality, they cannot be said to be powerless at all.

Eleven of thirteen federal circuit courts have recognized these truths, and that there is no basis for considering discrimination against homosexuals under the 14th Amendment, and certainly no basis for giving such claims the special consideration of “heightened scrutiny.”

Upon thorough examination, the foundation upon which homosexual activists make the claim that they should be able to counterfeit marriage (calling their relationships “marriage” even though they do not meet the prerequisites of marriage) is made of sand.  Every society across the globe throughout human history has recognized that marriage is between a man and a woman.  Why?  Because only a man and a woman can produce the element which is of value to a society: the next generation to populate that society.  The mother and father of that child are also quite naturally understood to be the best and most healthy environment for the nurture and development of that child, having a unique bond of love to protect the child, and being able as a team to model the healthy and complimentary interaction of males and females working together in everyday life.

Absent the child-producing and child-raising aspect of this endeavor, there is no reason any special consideration should be given to sexual relations.  When we consider these truths, the idea that the state should put some sort of special seal of approval on a romantic or sexual relationship–especially an unnatural and unhealthy one involving homosexual sex–is completely ludicrous.

Seriously, try to imagine walking up to the counter at your local courthouse and in plain language telling the government official why you’re there: (1) We want a marriage license because we plan to sodomize each other exclusively for a long time…well, more or less exclusively, until we get tired of each other; or (2) We want a marriage license because we want to pledge our commitment to one another for the rest of our lives as we work together to create and raise a family.  I think it’s obvious (to anyone who isn’t desperately on the lam from reality) which situation deserves the official sanction of the state and which one does not–and why the two are not even remotely comparable.

Sorry, unless you’re willing to do what it takes to form a marriage (find a partner of legal age, not a close relation, of the opposite sex), you don’t deserve the same distinction as those who are willing to do what it takes to form a marriage.  Unless you’re willing to to get in the proper physical shape it takes to become a cop and willing to go through the police academy training, you don’t get to call yourself a policeman just because you feel like you’d make a good cop.  Neither should you get to call yourself married unless you’re willing to do what it takes to meet the definition.

So why are homosexual activists so hell-bent on a ludicrous pronouncement of affirmation on their relationship from the government?  Because they believe that will provide the ever-elusive sense of legitimacy they crave for their illegitimate sexual relationships.  That, and the special benefits that society has traditionally afforded to those who do the hard and costly work of producing and raising society’s next generation.

Is that a legitimate reason to allow homosexual activists to redefine and counterfeit the most unique and most important relationship and institution in the world?  Not even close.

14 Responses to “The Legal Basis for Considering Homosexual ‘Marriage’”

  1. I’ve seen, and participated in, several online discussions about whether “gay marriage” should be allowed. What I’ve observed about the pro-“gay marriage” people is that, on no particular basis, they flatly refuse to acknowledge homosexuality as being in any way abnormal. It’s as if they think they can’t be proven wrong if they just hold firm on that one point.

    I suspect that many people accept homosexuality because if other people can’t do whatever they want sexually and call it OK, then maybe they can’t either.

    P.S.: The expression is “on the lam,” not “on the lamb.” 😉

  2. Thanks for the correction on “on the lamb.” I never knew. I don’t believe I’ve ever seen the expression in writing, just heard it used verbally.

  3. This is less of a Constitutional analysis of why law-abiding, taxpaying Gay couples should not be allowed the same legal benefits as Straight couples, and more of an attack on Gay people themselves. All the predictable arguments (that Gay people “choose” their sexual orientation, that religions condemn homosexuality, that Gay couples do not produce children on their own, yadda yadda yadda) were made long before the discussion of marriage equality began.

    Try again.

  4. Homosexuals already do have the same legal benefits as heterosexuals. They also have to meet the same requirements as heterosexuals in order to procure them: find someone to marry of legal age, not a close relative, and of the opposite sex.

    And yes, all of the factual and accurate arguments were made long before homosexual activists began trying to counterfeit marriage. The truth hasn’t changed since then.

    There is nothing legitimate or laudatory about homosexual behavior, and even less concerning the proposition of counterfeiting marriage.

  5. But we live in a country where homosexuality is as legal as heterosexuality. We go by our present laws and not what you personally think is or isn’t abnormal. What you think is abnormal has no bearing on this- only our laws do since we are a nation of laws and we are not a nation of what you think should be. We go by law. Our current laws say that all people have equal rights and thus all people have the civil right to marry a person of the same or different sex. That is of course, if you go by our constitutional rights and laws, which is what our country runs on.

  6. “But we live in a country where homosexuality is as legal as heterosexuality.”
    A practice being legal doesn’t equate to its having to be legitimized. Besides, homosexuality technically doesn’t *have* to be legal. Laws can change.

    “We go by our present laws and not what you personally think is or isn’t abnormal.”
    Homosexuality is abnormal regardless of my, your or anyone else’s opinion. Dismissing facts as being the “personal opinion” of the person referring to them is a fallacious trick.

  7. No one here says gay people “choose” their sexual preference. They can only choose what they will do with it. The lives of “gays” and “ex-gays” demonstrate that sexuality can be bent certain ways in certain people, and it can be unbent.

  8. Okay, lets say you and I agree that homosexuality is abnormal. And it is also true that laws can change. Still doesn’t matter as far as our current laws are concerned and DCM that is what rules the day in America– the Law. Let you and I get the laws the changed and then we are in business, but until we do, we go by law which says all Americans have equal rights and since marriage is a civil law or statute in America, then people have the right to marry what sex they want.The only thing you and I can do is change the law or stand by and yell at these people who marry same sex ” YOU ARE ABNORMAL “

  9. Whatever the law may currently say, the question needs to be asked: *Should* people have the right to “marry” their own sex?

    I cannot imagine that question being answered “yes” by anyone who really understands the meaning and purpose of marriage.

  10. Yes it is now currently legal. Does that mean before we legalized it, you would have agreed with me? And if so, I think that by default you would also consider it improper for homosexuals to work to have their behavior legalized, since you seem to think it is improper for me to even treat homosexual behavior as the illegitimate behavior it is, now that it is legally accepted.

    Our current laws do indeed say that people have equal rights; that is both moral and legal. Both homosexuals and heterosexuals can marry, and are subject to the same responsibilities and requirements concerning marriage: that their partner be of legal age, not a close relative, and be of the opposite sex. There simply is no lack of equality here. That is a fallacious, propagandist argument designed to fool unthinking people into allowing homosexuals the special “right” of counterfeiting marriage. Sorry, I just can’t fall for it.

    I should also point out that legality (unfortunately) often has nothing to do with morality, with what is right. It was once legal in this country to own another person; it was never right. It was once legal to take the property of Jews and kill them in Germany; it was never right. Just because something immoral becomes legal does not mean that we abandon the standards of what is right; rather, it means we work harder to get morality and legality in sync. Which is what I’m doing.

  11. Bob and DCM

    I am only saying that if the American people decide through law that homosexuality is illegal or pass a law that says homosexuals don’t have equal rights as the non-homosexuals, then homosexuals wouldn’t have a right to marry each other in America. That is unless they then inturn overturn the law.That is how things work in our country. It is a simple concept that our founders so wisely decided that we follow.

    I can talk and squawk all day about what my religion or lack of religion tells me, but in the end it is up to the electorate to decide

  12. Homosexuals already have equal rights. They would require a special right to counterfeit marriage.

    However, even if the government gave them permission to counterfeit marriage, it would still not change reality and magically make their union “marriage,” nor would it make it right. You can call a dog’s tail a leg, but he’ll still only have four legs. You can call slavery “legal,’ but it’s still going to be immoral.

  13. Only insanely insecure people find the exposition of truth to be an attack on them. You lend more and more credibility to the fact the the APA was dead wrong about removing homosexuality from their list of pathologies. It is clearly pathological.

  14. Everyone already has the same right to marry; homosexuals insist on the “right” to counterfeit it.

    The Bible doesn’t support slavery; it set forth revolutionary standards to better the lives of slaves and servants in a world where slaves had less status than cattle, and set forth the principles which eventually led to it being outlawed.