On April 28, the United States Supreme Court will hear oral arguments on Obergefell v. Hodges and three other cases, testing the constitutionality of state bans on same-sex “marriage” and state refusals to recognize existing same-sex “marriages.” The outcome may well impose same-sex “marriage” on the entire United States of America, much as Roe v. Wade imposed abortion on demand upon the entire nation in 1973.
Such another sweeping “exercise in raw judicial power” (to cite Justice Byron White’s famous dissent in Roe) would be, in large part, based upon claims, rooted in the Fourteenth Amendment to the U.S. Constitution, to the effect that homosexuals have been unjustly denied “equal protection of the laws” by not enjoying access to homosexual “marriage” and, thereby, to the legal status and benefits given to those citizens who are free to enter into traditional heterosexual marriages. The following analysis addresses this central claim presented in the pending cases.
Traditional marriage already has a legitimate and exclusive foundation in the Constitution, because the Constitution’s Preamble explicitly states that among its enumerated purposes is to “secure the Blessings of Liberty to ourselves and our Posterity.”
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According to Burton’s Legal Thesaurus, fourth edition (2007), “posterity” means, exclusively, entities, such as “later generations,” “children,” “progeny,” and other terms unequivocally identified with biological descendants.
Since the Preamble establishes the “legislative intent” that judges look to in determining the meaning of a law or constitution, it is clear that the U.S. Constitution is designed to secure the blessings of liberty to the biological descendants of the citizenry that constituted the United States at the time that the Constitution was enacted. This makes those biological descendants and whatever essentially pertains to them, including, presumably, the process by which they come into being as citizens of the nation, a central part or purpose of the Constitution itself.
“Equal protection of the laws” found in the Fourteenth Amendment language is cited in both state and federal claims alleging that homosexuals have the same right to marry as heterosexuals.
But such equality claims are illicit unless litigants are similarly situated before the law.
Since heterosexual marriage as a general institution can, at least potentially, further the purposes of the Constitution by securing the “blessings of liberty … to … our posterity” (biological descendants)—insofar as traditional marriage is the only institution that is naturally able to produce society’s posterity (biological descendants)—and since homosexual unions cannot produce any “posterity” (biological descendants) by themselves, the potential litigants are not similarly situated.
That is to say, while anyone can contribute to the blessings of liberty which may be bestowed upon posterity, traditional marriage between a man and a woman is the only civil institution naturally able to create the very object which is to receive those blessings, namely, posterity itself—the biological descendants of the present citizenry.
Anyone can make contributions to posterity, but the sexual union of male and female alone actually makes posterity itself. Marriage is the civil institution that regulates that union in civil society.
Thus, the Preamble’s wording establishes a distinct and special basis for traditional marriage, which does not obtain in homosexual unions.
This role of traditional marriage in producing society’s posterity is consistent with the classical meaning of marriage, even as understood by the pagan Romans.
Matrimony is taken from the Latin, “mater,” meaning “mother,” and “monium,” meaning “a state or condition,” thus defining the purpose of marriage as a man taking a wife in order to have children. In ancient Rome, this was understood as the purpose of marriage, the production of new citizens for the pagan Roman Empire.
While not every traditional marriage may actually beget new citizens for America, and while anyone may be able to adopt children, nonetheless traditional marriage between a man and a woman is the sole natural institution through which our “posterity” is begotten in order to replenish and perpetuate the citizenry of our nation. No merely arbitrarily formed contract—including so-called “same-sex marriage”—can fulfill that role as envisioned by the Founding Fathers, when they created a Constitution that secured the blessings of liberty, not only for ourselves, but also for our posterity.
Therefore, there is no legitimate basis for demanding “marriage equality” for homosexual unions—given the wording that expresses the legislative intent of the Founding Fathers as stated in the Preamble to the Constitution.
The Fourteenth Amendment cannot be legitimately employed to impose same-sex “marriage” upon the United States of America—unless the present Supreme Court intends once again to bear the infamy of engaging in an “exercise in raw judicial power.”