Point-Counterpoint with Randy DeSoto

I have received an email from Randy DeSoto regarding his column on the California gay marriage case, to which I respond here:


To make the discussion easier to follow, I will interpolate my responses to your comments:

I have been pressed for time, but my first response would be that your beef isn’t mainly with me.

Perhaps not mainly (as indicated below), but it is your name on the byline. And to the extent that it expresses opinions, they are yours:

“What is particularly stunning about this decision ….”
“The California Supreme Court’s ruling was wrong constitutionally and morally ….”
“The Court overstepped its boundary ….”
“The people of California will likely get the chance to right this wrong ….”

“In the meantime, before any other courts seek to redefine marriage, they would do well to study anew the true source of rights and stay out of the business of crafting their own.”

You stated those opinions. Presumably you hold them. Inasmuch as I disagree with each of them, it would appear that I have a pretty substantial “beef” with you, as well.

Most of my article recounts how the Supreme Court decided in 1986 (Bowers v. Hardwick) that there is no fundamental right to engage in sodomy to be found in the Constitution. The Court overruled itself in 2003, in Lawrence v. Texas, saying there is a newly discovered right, which had been missed before. I simply state what the court held and the reasoning it used.

The constitutional analyses in those two cases, in my opinion, are both flawed because they are based on a mistaken perception of what the constitution is and what it does with respect to the individual rights of people.

The essential point was perhaps best expressed by Alexander Hamilton in Federalist No. 84, in which he argued against adding a Bill of Rights to the Constitution. Referring to the Constitution, he said, “Here, in strictness, the people surrender nothing, and as they retain every thing, they have no need of particular reservations.” In short, our Constitution is a grant by the people to the government of certain limited powers, not a grant by the government to the people of certain limited rights. The 9th Amendment was added to the Bill of Rights specifically to drive home this point.

Therefore, proper constitutional interpretation starts not with the question of whether a particular right is “granted” in the Constitution, but whether by anything contained in the Constitution the people have specifically given the government the power to deny the right which is the subject of controversy. In short, not “is there anything in the Constitution which gives gays the right to marry?”, but rather “is there anything in the Constitution which gives the government the power to deny gays the right to marry?”

I think we can agree that the Constitution is silent of the subject. That being the case, proper constitutional interpretation leads inescapably to the conclusion that the people have not given the government the power to deny gays the right to marry. To the extent that the court in the precursor case of Lawrence v. Texas found a “new right” to make one’s own private sexual choices, it was mistaken … not because there is no such right, but because that right has been there since the day the Constitution was ratified and is not new at all.

I then discuss how Justice Scalia wrote in the dissent in Lawrence that this new-found right would be used to argue that same-sex couples should have the right to marry. Chief Justice Ronald George of the CA Supreme Court did just that. The reasoning employed in both instances was to redefine the right at issue. The right in Lawrence was no longer to right to engage in sodomy, but the right to be able to choose how to conduct one’s sexual life as one pleases (nothing about that in the Constitution).

True enough; there is nothing in the U.S. Constitution about marriage at all. Or about the right of heterosexual couples to marry. If your reasoning is correct, then, a state could constitutionally choose to deny heterosexual couples the right to marry; or for that matter, to engage in sex at all. Both are propositions absurd in the extreme, but follow logically from the manner in which you would have the constitution interpreted.

Chief Justice George did the same thing. It’s not the right of same-sex couples to marry, but the right of people to marry whomever they choose.

However, the majority opinion in this case wasn’t even based on the federal constitution. It was based on the California constitution and California statutory law by which “… a same-sex couple may enter into a legal relationship that affords the couple virtually all of the same substantive legal benefits and privileges, and imposes upon the couple virtually all of the same legal obligations and duties, that California law affords to and imposes upon a married couple.”

That being the case, Chief Justice George said:

“Accordingly, the legal issue we must resolve is not whether it would be constitutionally permissible under the California Constitution for the state to limit marriage only to opposite-sex couples while denying same-sex couples any opportunity to enter into an official relationship with all or virtually all of the same substantive attributes, but rather whether our state Constitution prohibits the state from establishing a statutory scheme in which both opposite-sex and same-sex couples are granted the right to enter into an officially recognized family relationship that affords all of the significant legal rights and obligations traditionally associated under state law with the institution of marriage, but under which the union of an opposite-sex couple is officially designated a “marriage” whereas the union of a same-sex couple is officially designated a “domestic partnership.” The question we must address is whether, under these circumstances, the failure to designate the official relationship of same-sex couples as marriage violates the California Constitution.”

Scalia points out, if there is a Constitutionally protected right to conduct one’s sexual life as one pleases, how can courts possibly uphold laws dealing with prostitution, child molestation, child pornography–moving on to marriage directly–incest and polygamy.

Scalia, the self-styled “originalist” is, in truth, a charming charlatan of strict construction. A true “originalist”, or anyone intellectually committed to strict construction of the constitution, would recognize and acknowledge that constitutional analysis ought to conform to the Hamiltonian standard described above. And that, therefore, the first question to be answered in any constitutional case ought to be “what is there in the constitution which gives the government the power to prohibit” the conduct in question.

In any event, as I discussed in my original post on your column, Scalia’s argument on this point is disingenuous. To the extent that there is a right to “conduct one’s sexual life as one pleases”, that right can, at the very least, be constitutionally limited to consenting adults. There is nothing in either the Lawrence case or in In re Marriage Cases by which anyone could reasonably conclude that there is a constitutional right to engage in child molestation or child pornography. That comment is, at best, a constitutional straw man. At worse, demagogic nonsense.

If my Constitutional analysis is so flawed, why is it shared by the majority in Bowers; Scalia, Thomas, and Rehnquist in Lawrence; and some of the justices in the dissent on the CA Supreme Court, four of whom did not agree George’s opinion (5-4 ruling).

It is flawed for the same reasons that the opinions to which you refer are flawed … and why Bowers is no longer the law and the other opinions to which you refer are minority opinions.

I do address how inalienable rights come from God, but in doing so, only restate what the Declaration of Independence hold is a self-evident truth.

And this is where your “constitutional” analysis runs completely off the rails. As venerable as is the Declaration of Independence, it has no role in interpreting the U.S. Constitution, which stands on its own. Nor does “God”, in any of his various manifestations, have any role in constitutional analysis. In fact, as you may recall, the constitution pointedly omits reference to any “god” at all and mentions “religion” only for the purpose of denying to the government entirely the power to legislate with respect thereto.

You said in your column:

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.’

Whatever the Bible might say about the “purpose of marriage”, with respect to interpreting the U.S. Constitution it is entitled to no more weight than the collected works of William Shakespeare, The Notebooks of Lazarus Long or any other work of fiction.

Justice George hold that there is an inalienable right for same-sex couples to marry. I argue he’s wrong.

You are, of course, entitled to “argue” anything you like. For that argument to carry any weight, however, it must be based on a rational, factual, intellectual interpretation of the law, not the irrational, emotional or spiritual basis upon which you and others would have our laws decided.

To cite Lincoln again, if we don’t believe the Declaration is true lets go to the federal code, where it is found, “and rip it out!” He then asked, “Is anyone so bold to do it?” People in the crowd he was speaking to in the IL senate race of 1858 cried out, “No, no.” He came back, “Let’s stick by it then.”

The Declaration of Independence isn’t even really in any federal code, except by reference as one of our “organic” laws. And, as such, it is subordinate to the constitution. You referred in your column to the Declaration of Independence as our nation’s “founding document”. While that might be the case, it is decidedly not our government’s “founding document”, which is something else entirely.

That’s my belief regarding marriage. Let’s not make it what it’s not.

Precisely my point … it is your “belief”, not an accurate analysis of constitutional law. Let’s not make it what it’s not.

3 thoughts on “Point-Counterpoint with Randy DeSoto

  1. Thank you, Randy, for a very well written rebuttal.
    The marriage ceremony is a religious ceremony to start with. Unfortunately State and Federal governments have used this ceremony as a foundation for determining the rights and responsibilities of the individuals in such a relationship. though the truth is it is the Marriage License not the ceremony which confers rights and responsibilities on couples. Justice of the peace ceremonies and common law marriages are performed outside the church mainly to confirm the rights and responsibilities that have been determined by state and federal governments as applying to couples.

    If a religious group chooses to determine the allowable make up of couples to be married in the church ceremony that is their right. But that determination has no place in Federal or State law IMH non-lawyer opinion.

  2. Thanks, Chris, for joining the conversation.

    The concept of marriage as a religious institution is actually of rather recent origin in the history of humanity. In ancient Greece and the Roman empire, marriage was a strictly civil arrangement. It wasn’t until after the fall of Rome that the influence of the Catholic Church transformed marriage into a religious matter.

    During the Protestant Reformation of the 16th century:

    “Martin Luther declared marriage to be ‘a worldly thing . . . that belongs to the realm of government’, and a similar opinion was expressed by Calvin. The English Puritans in the 17th century even passed an Act of Parliament asserting ‘marriage to be no sacrament’ and soon thereafter made marriage purely secular.”

    For a history of the institution of marriage, from which that quote was taken, see:


    Only after the Restoration did religious marriage once again hold sway in Europe and even then the concept of common law marriage allowed people to marry without religious sanction. Common law marriage was carried over to the American colonies and remained valid in some of our states until as recently as 1970.

    Civil marriage has been mandatory throughout Europe since the early 19th century. In the U.S. today, marriage is not “a religious ceremony to start with”. In fact, exactly the opposite. It is the law in every state that “marriage” requires a civil license, but in no state is a religious ceremony required.

    As you say, it is the marriage license which creates the marital relationship and determines the rights and responsibilities of the married parties. A religious ceremony without the civil license creates nothing.

    I agree completely that religious institutions should be free to choose who they will (or will not) marry in their ceremonies. In fact, any law to the contrary would be patently unconstitutional.

    I also agree completely that such a religious determination has no place in our legal system and that any law founded on religious grounds would also be patently unconstitutional.

    Jim Reilly

  3. Pingback: There is no Gay Marriage “Slippery Slope” | Free Legal Advice Isn't Worth What You Pay For It …

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