I received today an email with a link to an article by Randy DeSoto on the website The Conservative Voice. In this article, he discusses the recent California Supreme Court decision on gay marriage. DeSoto’s “constitutional” analysis of the issues is, however, deficient in several significant respects:
1) He makes a common error of logical argument in his assertion that “… if courts were to follow the Supreme Court’s reasoning to its logical ends, how could judges possibly uphold any state or federal law regarding private sexual conduct including incest, prostitution, polygamy, child molestation and child pornography?”
The California Supreme Court decision held that consenting adults, even if of the same sex, have a right to marry. There is nothing “logical” about extending that reasoning to such conduct as child molestation or child pornography, in particular, since neither involves consenting adults.
The argument that this decision could lead to legalization of incest is a “slippery slope” argument — there is a logical legal basis for differentiating between unrelated consenting adults and those whose degree of consanguinity would bring them within the definition of “incest”.
Furthermore, the California court’s decision is based on the right of each individual “to establish a loving and long-term committed relationship with another person”, which would hardly seem to include the typical prostitutional relationship.
The only one of the perceived “evils” which might constitute a logical extension of this ruling is polygamy. That possibility, alone, hardly seems a reasonable basis on which to deny gays the right to marry.
2) DeSoto asserts that the decision “tossed aside millennia of moral teaching”, but fails to recognize or acknowledge that he is referring to two millenia of Christian moral teaching. In other cultures and at other times, homosexuality has been considered not only “moral” but socially desireable. Furthermore, it is now widely recognized, if not by the Christian right, that homosexuality is a matter of biology, not morality. It is entirely appropriate for our courts to recognize, acknowledge and base their decisions on advances in scientific knowledge, even if they alter our views of what is or is not “moral”.
3) He also asserts that the decision is “constitutionally and morally” wrong in part because it “created a right contrary to the ‘laws of nature and nature’s God”. This assertion presumes that “morality” (and a Judeo-Christian morality at that) and “constitutionality” are equivalents. They are not. Contrary to his underlying assumption, our constitution implies no moral foundation, nor do the statutory laws of this country. There are many federal, state and local laws which specifically permit conduct that some or perhaps most people would consider “immoral”. On the other hand, there are many laws which prohibit conduct that cannot in any sense be considered “immoral”.
4) Finally, DeSoto would also have us believe that our civil courts should base their decisions on biblical teachings. He says, “The purpose of marriage was never more eloquently stated than in the book of Genesis, which records ‘for this reason a man shall leave his father and his mother and shall cleave unto his wife, and they shall become one flesh.'” It is difficult for me to conceive of a more dangerous basis upon which to found constitutional interpretation than religious dogma.
DeSoto’s article can be read in full at:
His email introduction to the article, which is titled “Same-Sex Marriage: No Right to Do Wrong”, states:
The title of this article is expresses what it is about. Lincoln uttered the words that there is “No right to do wrong” during his famous debates with Stephen Douglas concerning the constitutionality and morality of slavery. I address how the California Supreme Court’s decision creating a right for same-sex couples to marry is wrong on both those grounds too.
Lincoln, of course, was right. There is, however, no moral equivalence between the involuntary enslavement of one person by another and a personal relationship between consenting adults. In attempting to create such an equivalence, it is DeSoto who is wrong.