With Yet Stronger Reason

Gay marriage criticized at Education Week address

2008-09-22T21:54:00.000-07:00

Gay marriage criticized at Education Week address
By Carrie A. MooreDeseret News
Published: August 23, 2008
PROVO — Legalizing same-sex marriage will have significant, long-term societal, fiscal and legal consequences just as smoking and divorce do, even among those who don't personally participate.
That's the assessment from Lynn Wardle, a professor of law at Brigham Young University, who encouraged an audience of attorneys at the school's annual Education Week on Thursday to speak out in opposition to same-sex marriage, rather than being silenced by fear.
"Legalizing same-sex marriage or civil unions endangers not only marriage as an institution but will endanger the civil rights" of those who don't approve of it, Wardle said. "It's about the right to express opposition, and those who do so already suffer harassment and hostility."
As one of very few law professors who speak publicly against it, Wardle said he's been screamed at during the proceedings of large and respected organizations. "I've been called homophobic by a state senator."
"Hate-filled, homophobic, narrow-minded and bigoted — those are the labels you'll get. Those of you who live in California, put on your armor," he said, referring to an upcoming ballot measure that would strike down a recent Supreme Court ruling there legalizing gay marriage.
"Those attacks are purely an effort to silence, harass and drive out of the public square those who oppose them," he said.
"That's the greatest concern I have, the effort to intimidate and silence those who have different views. I've had professors I greatly respect come up to me in dark hallways and tell me they agree with me, but they won't stand up in a meeting and say so. They're afraid of the criticism they'll endure."
Changing the core definition of marriage will lead to clashes between those who have religious views about marriage and those who don't. "Those who want to promote conjugal marriage will be targeted," and many already have been, he said.
Most people who hear much from same-sex marriage proponents but little from the opposition wonder what the harm is, Wardle said. "It's not like a bone sticking out of a limb or blood spurting out of a wound. ... It will be at least a full generation before all the consequences are known. Like smoking, it will take years and decades to see the result."
He likened the consequences to the effect of divorce on children, recalling debates on the subject when he was a law school student. The notion of harm to children "was resoundingly rejected ... everybody said it's tough initially but it will be OK and there will be no lasting effects."
Yet, within a decade social scientists began documenting very distinct harm to children, he said. "There is now a large body of irrefutable evidence of the serious, harmful effects for children of divorce that have been documented."
While the impact is "temporary for two-thirds, it is lifelong for about one-third," he said. Making same-sex marriage legal "will harm you and your family the same way polygamous marriage to 14 year olds will harm you. ... It will transform the meaning, expectations and practices of marriage as a social institution and affects everyone who has a stake in marriage."
Legalizing such relationships would affect the functioning of the entire legal system, he said, "from taxes to torts, from wills to medical treatment. The laws will change, and we'll reconceptualize our understanding that the union of two men or two women is equally important."
In doing so, taxpayers will incur "huge social costs," just as they do now when marriages fail. He cited a recent study by a business professor at the Institute of American Values putting taxpayer cost of marital breakdown and nonmarital childbearing at $112 billion per year.
"That's $70 billion in federal costs, $42 billion in state costs, and it amounts to over $1 trillion per decade. If you think fighting the war in Iraq is expensive, we've been paying those costs in this country for the past 30 years."
Estimates show those figures translate into about $4,500 per year, per family, in taxpayer dollars. "If your tax burden is high now, wait until those (same-sex) marriages fall apart and the state has to care for" divorced spouses and children of those broken unions, he said.
Traditional marriage "contributes much more to society than any other form of adult intimate relationship," and is the bedrock of "society's cultural infrastructure." It is the "instrument of the most important moral transformation of individuals," who enjoy the "most healthy, satisfying and socially beneficial sexual relations."
"Gay sex differs in critical ways," from that between husband and wife, he said, beyond the lack of offspring. "The major transmission method for the AIDS virus is through sex between men in every area of the world other than sub-Saharan Africa."
Wardle blasted the California Supreme Court's decision earlier this year legalizing gay marriage as "judicial legislation" that "weakened the most basic institution of society." The ruling was "based on assumptions that same-sex marriage contributes as much to society as gay marriage," and that notion is "not without consequences. They simply assumed the absence of harm and closed their eyes to contrary evidence. In fact, they refused to even examine it."
The ruling was a "bold and bad political act that lacked judicial care and caution, but rather opted to exercise political influence." It was an "act of arrogance seldom matched in American legal history" that virtually "guaranteed litigation will occur in other states."
He said the only real solution to continued legal wrangling over how individual states will interpret and adapt to same-sex marriage is amending the U.S. Constitution to define marriage nationwide. While advocates for same-sex marriage have made swift headway in the past 15 years, there has been measurable "push-back," he said.
"Those of you who are summer soldiers or weekend warriors" in speaking out on public policy, "please re-adjust your thinking. These issues are generational and we'll have to work at it for a generation or two. If we do, our grandchildren will reap the benefits of what we're trying to do."

A CALL ON ALL POLITICIANS TO RETURN POLITICAL CONTRIBUTIONS FROM FREDDIE MAC AND FANNIE MAE

2008-09-16T22:26:00.001-07:00

The following is a list of Republican and Democratic members of Congress who have received contributions from Fannie Mae and Freddie Mac. In light of the fact that it is this same Congress that has had oversight over the the GSE's, I believe every patriot should demand these crooked politicians return this ill gotten contributions.

Fannie Mae and Freddie Mac Invest in Democrats
Published by Lindsay Renick Mayer on July 16, 2008 5:27 PM Permalink Comments (9)
(For an updated chart that includes contributions from Freddie Mac and Fannie Mae's PACs and employees to ALL lawmakers back to 1989, including to their leadership PACs, go here.) and data The federal government recently announced that it will come to the rescue of Freddie Mac and Fannie Mae, two embattled mortgage buyers that for years have pursued a lobbying strategy to get lawmakers on their side. Both companies have poured money into lobbying and campaign contributions to federal candidates, parties and committees as a general tactic, but they've also directed those contributions strategically. In the 2006 election cycle, Fannie Mae was giving 53 percent of its total $1.3 million in contributions to Republicans, who controlled Congress at that time. This cycle, with Democrats in control, they've reversed course, giving the party 56 percent of their total $1.1 million in contributions. Similarly, Freddie Mac has given 53 percent of its $555,700 in contributions to Democrats this cycle, compared to the 44 percent it gave during 2006.

Fannie Mae and Freddie Mac have also strategically given more contributions to lawmakers currently sitting on committees that primarily regulate their industry. Fifteen of the 25 lawmakers who have received the most from the two companies combined since the 1990 election sit on either the House Financial Services Committee; the Senate Banking, Housing & Urban Affairs Committee; or the Senate Finance Committee. The others have seats on the powerful Appropriations or Ways & Means committees, are members of the congressional leadership or have run for president. Sen. Chris Dodd (D-Conn.), chairman of the Senate banking committee, has received the most from Fannie and Freddie's PACs and employees ($133,900 since 1989). Rep. Paul Kanjorski (D-Pa.) has received $65,500. Kanjorski chairs the House Financial Services Subcommittee on Capital Markets, Insurance and Government-Sponsored Enterprises, and Freddie Mac and Fannie Mae are government-sponsored enterprises, or GSEs.

Top Recipients of Fannie Mae and Freddie Mac
Campaign Contributions, 1989-2008

Name
Office
Party/State
Total

1. Dodd, Christopher J
S
D-CT
$133,900

2. Kerry, John
S
D-MA
$111,000

3. Obama, Barack
S
D-IL
$105,849

4. Clinton, Hillary
S
D-NY
$75,550

5. Kanjorski, Paul E
H
D-PA
$65,500

6. Bennett, Robert F
S
R-UT
$61,499

7. Johnson, Tim
S
D-SD
$61,000

8. Conrad, Kent
S
D-ND
$58,991

9. Davis, Tom
H
R-VA
$55,499

10. Bond, Christopher S 'Kit'
S
R-MO
$55,400

11. Bachus, Spencer
H
R-AL
$55,300

12. Shelby, Richard C
S
R-AL
$55,000

13. Emanuel, Rahm
H
D-IL
$51,750

14. Reed, Jack
S
D-RI
$50,750

15. Carper, Tom
S
D-DE
$44,389

16. Frank, Barney
H
D-MA
$40,100

17. Maloney, Carolyn B
H
D-NY
$38,750

18. Bean, Melissa
H
D-IL
$37,249

19. Blunt, Roy
H
R-MO
$36,500

20. Pryce, Deborah
H
R-OH
$34,750

21. Miller, Gary
H
R-CA
$33,000

22. Pelosi, Nancy
H
D-CA
$32,750

23. Reynolds, Tom
H
R-NY
$32,700

24. Hoyer, Steny H
H
D-MD
$30,500

25. Hooley, Darlene
H
D-OR
$28,750

Includes contributions from PACs and individuals.
2008 cycle totals based on data downloaded from the
Federal Election Commission on June 30, 2008.

Before You Blame the Bush Admistration

2008-09-16T22:04:00.000-07:00

I find it quiet insteresting that the Bush Adminstration tried to reign in Fannie Mae and Feddy Mac, but was stopped by key democrats like Barney Frank. Please see the following New York Times article from September 11, 2003

September 16, 2008 -A Fortiori

New Agency Proposed to Oversee Freddie Mac and Fannie Mae
By STEPHEN LABATON
Published: September 11, 2003
The Bush administration today recommended the most significant regulatory overhaul in the housing finance industry since the savings and loan crisis a decade ago.

Under the plan, disclosed at a Congressional hearing today, a new agency would be created within the Treasury Department to assume supervision of Fannie Mae and Freddie Mac, the government-sponsored companies that are the two largest players in the mortgage lending industry.

The new agency would have the authority, which now rests with Congress, to set one of the two capital-reserve requirements for the companies. It would exercise authority over any new lines of business. And it would determine whether the two are adequately managing the risks of their ballooning portfolios.

The plan is an acknowledgment by the administration that oversight of Fannie Mae and Freddie Mac -- which together have issued more than $1.5 trillion in outstanding debt -- is broken. A report by outside investigators in July concluded that Freddie Mac manipulated its accounting to mislead investors, and critics have said Fannie Mae does not adequately hedge against rising interest rates.

''There is a general recognition that the supervisory system for housing-related government-sponsored enterprises neither has the tools, nor the stature, to deal effectively with the current size, complexity and importance of these enterprises,'' Treasury Secretary John W. Snow told the House Financial Services Committee in an appearance with Housing Secretary Mel Martinez, who also backed the plan.

Mr. Snow said that Congress should eliminate the power of the president to appoint directors to the companies, a sign that the administration is less concerned about the perks of patronage than it is about the potential political problems associated with any new difficulties arising at the companies.

The administration's proposal, which was endorsed in large part today by Fannie Mae and Freddie Mac, would not repeal the significant government subsidies granted to the two companies. And it does not alter the implicit guarantee that Washington will bail the companies out if they run into financial difficulty; that perception enables them to issue debt at significantly lower rates than their competitors. Nor would it remove the companies' exemptions from taxes and antifraud provisions of federal securities laws.

The proposal is the opening act in one of the biggest and most significant lobbying battles of the Congressional session.

After the hearing, Representative Michael G. Oxley, chairman of the Financial Services Committee, and Senator Richard Shelby, chairman of the Senate Banking Committee, announced their intention to draft legislation based on the administration's proposal. Industry executives said Congress could complete action on legislation before leaving for recess in the fall.

''The current regulator does not have the tools, or the mandate, to adequately regulate these enterprises,'' Mr. Oxley said at the hearing. ''We have seen in recent months that mismanagement and questionable accounting practices went largely unnoticed by the Office of Federal Housing Enterprise Oversight,'' the independent agency that now regulates the companies.

''These irregularities, which have been going on for several years, should have been detected earlier by the regulator,'' he added.

The Office of Federal Housing Enterprise Oversight, which is part of the Department of Housing and Urban Development, was created by Congress in 1992 after the bailout of the savings and loan industry and concerns about regulation of Fannie Mae and Freddie Mac, which buy mortgages from lenders and repackage them as securities or hold them in their own portfolios.

At the time, the companies and their allies beat back efforts for tougher oversight by the Treasury Department, the Federal Deposit Insurance Corporation or the Federal Reserve. Supporters of the companies said efforts to regulate the lenders tightly under those agencies might diminish their ability to finance loans for lower-income families. This year, however, the chances of passing legislation to tighten the oversight are better than in the past.

Reflecting the changing political climate, both Fannie Mae and its leading rivals applauded the administration's package. The support from Fannie Mae came after a round of discussions between it and the administration and assurances from the Treasury that it would not seek to change the company's mission.

After those assurances, Franklin D. Raines, Fannie Mae's chief executive, endorsed the shift of regulatory oversight to the Treasury Department, as well as other elements of the plan.

''We welcome the administration's approach outlined today,'' Mr. Raines said. The company opposes some smaller elements of the package, like one that eliminates the authority of the president to appoint 5 of the company's 18 board members.

Company executives said that the company preferred having the president select some directors. The company is also likely to lobby against the efforts that give regulators too much authority to approve its products.

Freddie Mac, whose accounting is under investigation by the Securities and Exchange Commission and a United States attorney in Virginia, issued a statement calling the administration plan a ''responsible proposal.''

The stocks of Freddie Mac and Fannie Mae fell while the prices of their bonds generally rose. Shares of Freddie Mac fell $2.04, or 3.7 percent, to $53.40, while Fannie Mae was down $1.62, or 2.4 percent, to $66.74. The price of a Fannie Mae bond due in March 2013 rose to 97.337 from 96.525.Its yield fell to 4.726 percent from 4.835 percent on Tuesday.

Fannie Mae, which was previously known as the Federal National Mortgage Association, and Freddie Mac, which was the Federal Home Loan Mortgage Corporation, have been criticized by rivals for exerting too much influence over their regulators.

''The regulator has not only been outmanned, it has been outlobbied,'' said Representative Richard H. Baker, the Louisiana Republican who has proposed legislation similar to the administration proposal and who leads a subcommittee that oversees the companies. ''Being underfunded does not explain how a glowing report of Freddie's operations was released only hours before the managerial upheaval that followed. This is not world-class regulatory work.''

Significant details must still be worked out before Congress can approve a bill. Among the groups denouncing the proposal today were the National Association of Home Builders and Congressional Democrats who fear that tighter regulation of the companies could sharply reduce their commitment to financing low-income and affordable housing.

''These two entities -- Fannie Mae and Freddie Mac -- are not facing any kind of financial crisis,'' said Representative Barney Frank of Massachusetts, the ranking Democrat on the Financial Services Committee. ''The more people exaggerate these problems, the more pressure there is on these companies, the less we will see in terms of affordable housing.''

Representative Melvin L. Watt, Democrat of North Carolina, agreed.

''I don't see much other than a shell game going on here, moving something from one agency to another and in the process weakening the bargaining power of poorer families and their ability to get affordable housing,'' Mr. Watt said.

Barack Obama Opposes Traditional Marriage

2008-09-15T23:00:00.000-07:00

Dear Friends,

Thank you for the opportunity to welcome everyone to the Alice B. Toklas LGBT Democratic Club's Pridc Breakfast and to congratulate you on continuing a legacy of success, stretching back thirty-six years. As one of the oldest and most influential LGBT organizations in the country, you have continually rallied to support Democratic candidates and causes, and have fought tirelessly to secure equal rights and opportunities for LGBT Americans in California and throughout the country.

As the Democratic nominee for President, I am proud to join with and support the LGBT community in an effort to set our nation on a course that recognizes LGBT Americans with full equality under the law. That is why I support extending fully equal rights and benefits to same sex couples under both state and federal law. That is why I support repealing the Defense of Marriage Act and the "Don't Ask Don't Tell" policy, and the passage of laws to protect LGBT Americans from hate crimes and employment discrimination. And that is why I oppose the divisive and discriminatory efforts to amend the California Constitution, and similar efforts to amend the U.S. Constitution or those of other states.

For too long. issues of LGBT rights have been exploited by those seeking to divide us. It's time to move beyond polarization and live up to our founding promise of equality by treating all our citizens with dignity and respect. This is no less than a core issue about who we are as Democrats and as Americans.

Finally, I want to congratulate all of you who have shown your love for each other by getting married these last few weeks. My thanks again to the Alice B. Toklas LGBT Democratic Club for allowing me to be a part of today's celebration. I look forward to working with you in the coming months and years, and I wish you all continued success.

Sincerely,

s

Barack Obama

Civic Responsibility

2008-09-15T22:36:00.000-07:00

Note: This is a transcript of a talk I recently gave regarding Civic Responsibility in the Sierra Ward of the Fresno West Stake. I do not have all of my cites and relied heavily on two talks given by President Ezra Taft Benson, including, Ezra Taft Benson, “Civic Standards for the Faithful Saints,” Ensign, Jul 1972, 59 and Ezra Taft Benson, “Our Divine Constitution,” Ensign, Nov 1987, 4.. Additional sources included Cheryll Lynn May, “Beyond Voting: Some Duties of the LDS Citizen,” Ensign, Jun 1976, 46.

While not quoted, I found selected writings by John Calvin and Martin Luther enlightening. Also helpful was a copy of the Federalist Papers from my College days. Finally, I appreciate Plutarch’s life of Brutus which is great example of how far men and people will go when they simply perceive their liberties are to be curtailed by a powerful man or small minority.

As president Benson stated:

“Improve your community by active participation and service. Remember in your civic responsibility that “the only thing necessary for the triumph of evil is for good men to do nothing” (Edmund Burke, in George Seldes, comp., The Great Thoughts, New York: Ballantine Books, 1985, p. 60). Do something meaningful in defense of your God-given freedom and liberty. (Ezra Taft Benson, “To the Single Adult Brethren of the Church,” Ensign, May 1988, 51)

A Fortiori –September 15, 2008

I have been asked to talk to you today about Civic Responsibility. I have spent a lot of time reading and praying about what it is that the Lord Jesus Christ wants us to hear. As I read discourses on Political Philosophy, re read portions of the Federalist Papers and other documents on government, I felt inspired to share an experience of Brigham Young.

Brigham Young fell asleep and dreamed, and when he awoke, he recorded what he had seen. “In my dream I went to see Joseph,” he wrote. Finding Joseph sitting by a large window looking “perfectly natural,” Brigham took him by the hand, kissed his cheeks, and asked him why they could not be together as before. Joseph arose from his chair, looked at Brigham, and spoke in his usual way: “It is all right.” Brigham protested, but Joseph replied: “You will have to do things without me a while and then we shall be together again.”

Brigham then addressed Joseph as his mentor and asked for counsel. The advice was direct and simple: “Be sure to tell the people to keep the spirit of the Lord.” (Brigham Young holograph, 17 February 1847, Brigham Young Papers, LDS Church Archives; spelling modernized)

With that counsel in mind, it is my prayer that as I talk to you this afternoon, that the Spirit of the Lord Jesus Christ, the Spirit of Truth will reach out such we understand one another and are all edified.

The Constitution

In July 1972 President Ezra Taft Benson identified civic standards for faithful latter day saints. These include
1. Understanding the Constitution
2. Reliance on Scriptural Authority
3. Revelation from Modern Prophets
4. Personal Revelation

The prophets from Joseph Smith through President Monson have reemphasized the divinity of our Constitution, which the Lord stated” belongs to all mankind” (D&C 98:5; italics added) “and should be maintained for the rights and protection of all flesh, according to just and holy principles” (D&C 101:77; italics added).

The Constitution of the United States has served as a model for many nations and is the oldest constitution in use today.“I established the Constitution of this land,” said the Lord, “by the hands of wise men whom I raised up unto this very purpose” (D&C 101:80).

We read in the Book of Mormon, that The Lord kept the Americas hidden for many centuries in until the time was right to unveil her for her destiny in the last days. “It is wisdom that this land should be kept as yet from the knowledge of other nations,” said Lehi, “for behold, many nations would overrun the land, that there would be no place for an inheritance” (2 Ne. 1:8).

In the Lord’s due time His Spirit “wrought upon” Columbus, the pilgrims, the Puritans, and others to come to America. They testified of God’s intervention in their behalf (see 1 Ne. 13:12–13). The Book of Mormon records that they humbled “themselves before the Lord; and the power of the Lord was with them” (1 Ne. 13:16). This is exemplified by the writers of the Mayflower Compact:

We whose names are underwritten, the loyal subjects of our dread sovereign Lord, King James, by the grace of God, of Great Britain, France and Ireland king, defender of the faith, etc., having undertaken, for the glory of God, and advancement of the Christian faith, and honor of our king and country, a voyage to plant the first colony in the Northern parts of Virginia, do by these presents solemnly and mutually in the presence of God, and one of another, covenant and combine ourselves together into a civil body politic, for our better ordering and preservation and furtherance of the ends aforesaid; and by virtue hereof to enact, constitute, and frame such just and equal laws, ordinances, acts, constitutions, and offices, from time to time, as shall be thought most meet and convenient for the general good of the colony, unto which we promise all due submission and obedience.

Our Father in Heaven planned the coming forth of the Founding Fathers and their form of government as the necessary great prologue leading to the restoration of the gospel. Recall what our Savior Jesus Christ said nearly two thousand years ago when He visited this promised land: “For it is wisdom in the Father that they should be established in this land, and be set up as a free people by the power of the Father, that these things might come forth” (3 Ne. 21:4). America, the land of liberty, was to be the Lord’s latter-day base of operations for His restored church.
The Declaration of Independence affirmed the Founding Fathers’ belief and trust in God in these words:

“We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain inalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness.”

The Doctrine and Covenants states, “We believe that no government can exist in peace, except such laws are framed and held inviolate as will secure to each individual the free exercise of conscience, the right and control of property, and the protection of life” (D&C 134:2). Life, liberty, property—mankind’s three great rights.

At the conclusion of the Declaration of Independence, those who signed declared”
“And for the support of this Declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our lives, our Fortunes, and our sacred Honor.”

This Declaration was a promise that would demand terrible sacrifice on the part of its signers. Five of the signers were captured as traitors and tortured before they died. Twelve had their homes ransacked and burned. Two lost their sons in the Revolutionary War; another had two sons captured. Nine died from wounds or from the hardships of the war. The Lord said He “redeemed the land by the shedding of blood” (D&C 101:80). Are we willing to sacrafice as well for our freedom and liberty?

The years immediately preceding the Constitutional Convention were filled with disappointments and threats to the newly won peace. Washington was offered a kingship, which he adamantly refused. Nephi had prophesied hundreds of years before that “this land shall be a land of liberty unto the Gentiles, and there shall be no kings upon the land” (2 Ne. 10:11; italics added).

Between the critical years of 1783 and 1787, an outsider viewing the affairs of the United States would have thought that the thirteen states, different in so many ways, could never effectively unite. The world powers were confident that this nation would not last.

Eventually, twelve of the states met in Philadelphia to address the problem. Madison said at the beginning of the Convention that the delegates “were now digesting a plan which in its operation would decide forever the fate of Republican Government” (26 June 1787, Records of the Federal Convention, 1:423).

“The Lord knoweth all things from the beginning,” said Nephi, “wherefore, he prepareth a way to accomplish all his works among the children of men” (1 Ne. 9:6).
Four months later, the Convention delegates had completed their work. As Gladstone said, it was “the most wonderful work ever struck off at a given time by the brain and purpose of man” (William Gladstone, North American Review, Sept.–Oct. 1878, p. 185), and the Prophet Joseph Smith called it “a glorious standard … a heavenly banner” (Teachings of the Prophet Joseph Smith, sel. Joseph Fielding Smith, Salt Lake City: Deseret Book Co., 1938, p. 147).

The delegates were the recipients of heavenly inspiration. James Madison, often referred to as the father of the Constitution, wrote: “It is impossible for the man of pious reflection not to perceive in it a finger of that Almighty hand which has been so frequently and signally extended to our relief in the critical stages of the revolution” (The Federalist, no. 37, ed. Henry Cabot Lodge, New York: G. P. Putnam’s Sons, 1983, p. 222).

Alexander Hamilton, famous as the originator of The Federalist papers and author of fifty-one of the essays, said: “For my own part, I sincerely esteem it a system, which without the finger of God, never could have been suggested and agreed upon by such a diversity of interest” (Essays on the Constitution of the United States, ed. Paul L. Ford, 1892, pp. 251–52).

During his first inaugural address in 1789, President George Washington, a man who was raised up by God, said: “No people can be bound to acknowledge and adore the invisible hand, which conducts the affairs of men, more than the people of the United States. Every step by which they have advanced to the character of an independent nation seems to have been distinguished by some token of providential agency” (First Inaugural Address, 30 Apr. 1789).

In compliance with Article 6 of the Constitution, the very first act passed by Congress and signed by President Washington on June 1, 1789, was the actual oath to support the Constitution that was to be administered to various government officers.
The dedicatory prayer for the Kirtland Temple, as dictated by the Lord and found in the Doctrine and Covenants, contains these words: “May those principles, which were so honorably and nobly defended, namely, the Constitution of our land, by our fathers, be established forever” (D&C 109:54).

Civic Responsibility

As members of the Church of Jesus Christ of Latter-Day Saints and of the general Christian Community in which we live, we must be concerned with the maintenance of personal freedom, which the Lord has indicated is essential to individual salvation and exaltation.

We must not assume that since the Constitution embodies a “divinely inspired” political system the machinery of checks and balances, separation of powers, and other constitutional limitations will automatically preserve political and moral freedom for the individual. The prophets have made clear that no constitution or set of laws, written or unwritten, can by themselves protect a nation from corrupt leaders. Brigham Young remarked, “No matter how good a government is, unless it is administered by righteous men, an evil government will be made of it.” (Journal of Discourses, 10:177.)

Bitter experience has shown that the best way to keep corrupt individuals from subverting constitutional and legal processes is for committed citizens to maintain a constant, careful surveillance over governmental activities, opposing individuals motivated only by selfish ambition in seeking public office. Although ancient and latter-day scriptures warn that increasing political violence and corruption will precede the millennium, Latter-day Saints must continue during this pre-millennial period to struggle to maintain the political freedoms essential to the spread and practice of the gospel of Jesus Christ.

Political life, whether on the level of school board member, “pressure group” leader, or state governor, refines the political skills of reasoning, persuasion, organization, and negotiation. As the active citizen develops these skills, he also takes the greatest possible advantage of his precious gift of free agency. When one leaves the burden of active political participation to others, he loses the opportunity to affect directly many of the decisions that will shape his world. He abdicates a degree of control over his life and his community which he might otherwise have exercised. The Lord has often indicated his opposition to kingships and other autocratic forms of government that take the opportunity and responsibility for decision-making out of the hands of the people. He surely cannot be pleased when those of his children blessed with a democratic form of government refuse to grasp the opportunities it offers for active civic participation and allow their potential for gaining greater understanding and mastery of self-government to atrophy.

Proposition 8/Elections

As you know, the Church’s mission is to preach the Gospel of Jesus Christ, not to elect politicians. The Church Of Jesus Christ of Latter Day Saints is neutral in matters of party politics. This applies in all of the many nations in which it is established.
The Church does not:
• Endorse, promote or oppose political parties, candidates or platforms.
• Allow it church buildings, membership lists or other resources to be used for partisan political purposes.
• Attempt to direct its members as to which candidate or party they should give their votes to. This policy applies whether or not a candidate for office is a member of The Church of Jesus Christ of Latter-Day Saints
• Attempt to direct or dictate to a government leader.
The Church Does:
• Encourage its members to play a role as responsible citizens in their communities, including becoming informed about issues and voting in elections.
• Expect its member to engage in the political process in an informed and civil manner, respecting the fact that members of the Church come from variety of backgrounds and experiences and may have differences of opinion in partisan political matters.
• Request candidates for office not to imply that their candidacy or platforms are endorsed by the Church.
• Reserves the right as an institution to address, in a non partisan way, issues that it believes have a significant community or moral consequence or that directly influences the interests of the Church.
(See LDS.ORG,Newsroom, Public Issues, Political Neutrality, 2007)

In line with the Church’s position reserving the right to address moral issues, On June 29, 2008, The First Presidency of the Church of Jesus Christ of Latter Day Saints provided the following:

Preserving Traditional Marriage and Strengthening Families

In March 2000 California voters overwhelmingly approved a state law providing that “Only marriage between a man and a woman is valid or recognized in California.” The California Supreme Court recently reversed this vote of the people. On November 4, 2 008, Californians will vote on a proposed amendment to the California state constitution that will now restore the March 2000 definition of marriage approved by the voters.

The Church’s teachings and position on this moral issue are unequivocal. Marriage between a man and a woman is ordained of God, and the formation of families is central to the Creator’s plan for His children. Children are entitled to be born within this bond of marriage.

A broad-based coalition of churches and other organizations placed the proposed amendment on the ballot. The Church will participate with this coalition in seeking its passage. Local Church leaders will provide information about how you may become involved in this important cause.

We ask that you do all you can to support the proposed constitutional amendment by donating of your means and time to assure that marriage in California is legally defined as being between a man and a woman. Our best efforts are required to preserve the sacred institution of marriage.

As to how apply this declaration in our lives, President Ezra Taft Benson stated that a great civic standard for the Saints is the inspired word of the prophets—particularly the living president, God’s mouthpiece on the earth today. Keep your eye on the captain and judge the words of all lesser authority by his inspired counsel.

Along this line, the story is told how Brigham Young, driving through a community, saw a man building a house and simply told him to double the thickness of his walls. Accepting President Young as a prophet, the man changed his plans and doubled the walls. Shortly afterward a flood came through that town, resulting in much destruction, but this man’s walls stood. While putting the roof on his house, he was heard singing, “We thank thee, O God, for a prophet!”

Will we follow the prophet and double our walls in this great effort of preserving families and marriage as ordained by Heavenly Father and His Son Jesus Christ.

If you have doubts, recall that Joseph Smith taught “that a prophet was a prophet only when he was acting as such.” (DHC, vol. 5, p. 265.) Thus if a leader of the Church were to tell you that you were supporting the wrong side of a particular issue do not take offense. More important do not immediately resist this leader and his counsel or ignore it, but I would suggest that you first apply what Ezra Taft Benson identifies as the fourth great civic standard for the faithful Saints. That standard is to live for, to get, and then to follow the promptings of the Holy Spirit.

Said Brigham Young: “I am more afraid that this people have so much confidence in their leaders that they will not inquire for themselves of God whether they are led by Him. … Let every man and woman know, by the whisperings of the Spirit of God to themselves, whether their leaders are walking in the path the Lord dictates, or not.” (JD, vol. 9, p. 150.)

We need the constant guidance of that Spirit. We live in an age of deceit. “O my people,” said Isaiah “they who lead thee cause thee to err and destroy the way of thy paths.” (2 Ne. 13:12.)

The Lord holds us accountable if we are not wise and are deceived. “For they that are wise,” he said, “and have received the truth, and have taken the Holy Spirit for their guide, and have not been deceived—verily I say unto you, they shall not be hewn down and cast into the fire, but shall abide the day.” (D&C 45:57.)

If you doubt this great cause, If you doubt the request of the Prophet of our Lord and Savior Jesus Christ, I implore you to ask God.
“And when ye shall receive these things, I would exhort you that ye would aask God, the Eternal Father, in the name of Christ, if these things are not btrue; and if ye shall ask with a csincere heart, with dreal intent, having efaith in Christ, he will fmanifest the gtruth of it unto you, by the power of the Holy Ghost. And by the power of the Holy Ghost ye may aknow the btruth of all things. (Moroni 10:4-5)

Enlisting Others to Help

We have been assigned a great task by the Lord through his Prophet, Thomas S. Monson. We can try to do this on our own or we can trust in the Lord that others will come to our assistance as we lead with Faith created by our assurances in the liberating sacrifice of our Lord Jesus Christ.

God, the Father of us all, uses the men of the earth, especially good men, to accomplish his purposes. It has been true in the past, it is true today, it will be true in the future. If we have concerns about working with those of other Christian Churches remember this:

“Perhaps the Lord needs such men on the outside of His Church to help it along,” said Elder Orson F. Whitney of the Quorum of the Twelve. “They are among its auxiliaries, and can do more good for the cause where the Lord has placed them, than anywhere else. … Hence, some are drawn into the fold and receive a testimony of the truth; while others remain unconverted … the beauties and glories of the gospel being veiled temporarily from their view, for a wise purpose. The Lord will open their eyes in His own due time. God is using more than one people for the accomplishment of His great and marvelous work. The Latter-day Saints cannot do it all. It is too vast, too arduous for any one people. … We have no quarrel with the [other Christain sects and congregations]. They are our partners in a certain sense.”
We honor these partners because their devotion to correct principles overshadows their devotion to popularity, party or personality. We know through faith in Jesus Christ, our Christian partners and other partners of faith and strong moral and ethical background will follow as we lead in faith.

A Final Reminder

When we look at issues of politics, J. Rueben Clark Jr., put it well:
“God provided that in this land of liberty, our political allegiance shall run not to individuals, that is, to government officials, no matter how great or how small they may be. Under His plan, our allegiance and the only allegiance we owe as citizens or denizens of the United States, runs to our inspired Constitution which God himself set up. So runs the oath of office of those who participate in government. A certain loyalty we do owe to the office which a man holds, but eve here we owe just by reason of our citizenship, no loyalty to the man himself. In other countries it is to the individual that allegiance runs. This principle of allegiance to the Constitution is basic to our freedom. It is one of the great principles that distinguishes this land of liberty from other countries. (Improvement Era, Jul 1940, p. 444)

Likewise, Theodore Roosevelt stated:
“Patriotism means to stand by the country. It does not mean to stand by the President or any other public official save exactly to the degree in which he himself stands by the country. . .Every man, who parrots the cry of ‘stand by the President’ without adding the proviso ‘so faras he serves the Republic’ takes an attitude as essentially unmanly as that of any Stuart royalist who championed the doctrine that the King could do no wrong. No self respecting and intelligent free man could take such an attitude.” (Theodore Rossevelt, Works, vol 21, pp. 316, 321.)
As Latter-day Saints and followers of Jesus Christ, we should pray for our civic leaders and encourage them in righteousness.

Conclusion

If you feel overwhelmed or confused over this moral issue I suggest Brigham Young’s approach to life and leadership.

“My religion is to know the will of God and do it.”
Daily he sought to learn the Lord’s will for him now—what his duty was today. Once he saw his responsibility, he marshaled all his resources to do it.
“When I think of myself, I think just this—I have the grit in me, and I will do my duty any how.”

This determination to do his duty complemented a bedrock faith that if one was on the Lord’s errand and did everything in his or her power, God would do the rest.
I know the Lord will assist us in this great work.

God Bless America By Harry V. Jaffa- April 16, 2008

2008-09-10T23:59:00.000-07:00

Editor's Note: Five years ago, at Barack Obama's church in Chicago, the Reverend Jeremiah Wright declared: "No, no, no, not God bless America, God damn America, that's in the Bible, for killing innocent people, God damn America, for treating her citizens as less than human. God damn America for as long as she acts like she is God and she is supreme." Shall we sing "God Bless America" or "God Damn America" then? Because Senator Barack Obama aspires to be America's president, and because his spiritual mentor happens to be Rev. Wright, the senator was obliged to make a speech in answer to this question. The speech was properly ambitious. It attempted to relate God, the Declaration of Independence, the Constitution, race, slavery, and the American cause. We offer here an alternative to the reverend's diatribes and the senator's speech.

The principles upon which this nation was founded are those upon which its survival, no less than its prosperity, depend. These are the principles upon which we believe our freedom and prosperity as individuals, and that of our children depend. These principles are simple and familiar enough for anyone to understand who wishes to understand. Selfish motives, miseducation, or ideological blindness may lead some to deny or disparage them. But nothing can obscure their shining truth.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness. —That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.
Lincoln at Gettysburg said that the nation, at its birth, had been dedicated to the proposition that all men are created equal. Earlier, Lincoln had said that the proposition of equality was the "central idea" of the founding, from which all its minor thoughts emanated.

The American Proposition

It just came to me within the past few weeks, y'all, why so many folks are hating on Barack Obama. He doesn't fit the model. He ain't white, he ain't rich, and he ain't privileged. Hillary fits the mold. Europeans fit the mold.... Rich white men fit the mold.... Barack knows what it means to be a black man living in a country and a culture that is controlled by rich white people.
—Reverend Jeremiah Wright
Trinity United Church of Christ, Chicago
December 25, 2007

What exactly did these words, of both the Declaration of Independence and the Gettysburg Address, mean? They meant that there was no difference, between one human being, and another human being, that made one the master and the other the servant. As Jefferson once put it, some men are not born with saddles on their backs, nor are others born booted and spurred to ride them. That a man or woman rides a horse corresponds with the difference in their natures. No injustice is done to the horse! That an ox should pull a plow, while a man walks behind, is according to nature. In these cases, servitude follows from the laws of nature. But these same laws of nature tell us that when a human being is subjected to other human beings as if he were a horse or an ox, the laws of nature are violated. All human beings are accordingly equal in their right not to be enslaved, and in their right to be in secure possession of their lives, liberties, and property. To this end they have a right to be governed only by laws to which they have consented.

That all men are created equal does not mean that human beings are the same, or equal, in size, strength, beauty, virtue, or intelligence. There are obviously great differences in individual aptitudes and talents in sports, music, mathematics, speaking, and writing. They are also unequal in the virtues, among them courage, temperance, and justice. But as Jefferson once said, the fact that Sir Isaac Newton may be the most intelligent of living human beings does not give him any right whatever to my person or my property.

If there is no natural authority of any human being over any other—leaving aside the temporary authority of parents over children—how does lawful authority arise? In the words of the Massachusetts Constitution of 1780, "The body politic is formed by a voluntary association of individuals; it is a social compact by which the whole people covenants with each citizen and each citizen with the whole people that all shall be governed by certain laws for the common good."

It cannot be too greatly emphasized that the political community is a voluntary association. In obeying the law, we are obeying ourselves. In obeying the law we seek to provide a greater security for the rights which we have from God and nature, but which rights we cannot provide for by ourselves alone. The "just powers of government" arise for no other purpose than the protection of those rights which are antecedent to government. Governments exist to protect these rights; the rights themselves do not come from government. In the protection of these rights, no citizen is entitled to greater, or to less protection, than any other. Here is the original meaning of the equal protection of the laws. No one is entitled to greater protection than any of his fellow citizens, because of his wealth, birth, or intelligence. Nor is any one entitled to exemption from taxation or from service in the common defense, because of any claim of superior personal worth.

Once the political community comes into being as a result of the unanimous consent of those who form it, this community must have a government capable of acting. It cannot, however, act by unanimous consent. Such government must, at first, be by majority rule. It must be understood, however, that the authority of the majority is bounded and limited by the purposes for which unanimous consent had originally been given. The majority represents the community in determining how the rights of everyone, minority no less than majority, are to be served. It is to spell out the boundaries of majority rule, and to assert the indefeasible rights of minorities, that constitutions are peculiarly necessary.

In the government of the political community, officers in all its branches will have lawful powers, by which they can give lawful orders. The president as commander-in-chief of the armed services has unique authority to command the use of force in the execution of the laws. We do not however suppose his person to be endowed with rights greater than those of anyone else. We the people have endowed him with powers necessary for our protection. The powers which he enjoys under the Constitution are for our benefit, not his. Thus civic or political inequality arises necessarily from original equality and is consistent with it.

A free society, so far as possible, has a level playing field. But within the human family, there is a great variety of talents, and of energy, and of ambition. Equality of opportunity leads necessarily to inequality of results. Equality of rights leads necessarily to inequality of wealth. A war against wealth is a denial of the equality of rights. James Madison, in the tenth Federalist, observed that there is a "diversity in the faculties of men from which the rights of property originate." The equal protection of unequal faculties of acquiring property is "the first object of government." As Abraham Lincoln wrote: "that some should be rich shows that others may become rich, and hence is just encouragement to industry and enterprise." It is the encouragement to industry and enterprise, arising from the recognition of human equality, which makes a free society more productive, with more wealth, more widely distributed, than any other form of human society.

Slavery and the Human Story

Racism is how this country was founded and how this country is still run! ...We [in the U.S.] believe in white supremacy and black inferiority and believe it more than we believe in God.
—Reverend Jeremiah Wright
sermon at Howard University's Andrew Rankin Memorial Chapel, Washington, D.C.
January 15, 2006

But one may ask, how is it that slavery, or any other form of invidious discrimination, has played so great a role in American history? How could a nation, dedicated at its birth to the proposition that all men are created equal, have tolerated slavery and its effects so long? If we look to the long history of mankind, however, we will ask a different question. Slavery was lawful in every one of the original thirteen states. There was accordingly nothing remarkable in the fact that slavery was not abolished immediately on independence. What is remarkable is that a slave-owning nation would declare that all men are created equal, and thereby make the abolition of slavery a moral and political necessity. To accomplish that task would not be easy. We need to see the dimensions of that task to appreciate its difficulty.

Let us contemplate two epochal events in the long human story. One is the annunciation of the unity of God at Mt. Sinai. That same God was said to have made man, alone among living beings, in His image. Implicit in the unity of God was the corresponding unity of the human race. But it was only after more than three thousand years, that the Declaration of this unity was made in Philadelphia. One need not believe in direct divine intervention to think that it has been the peculiar mission of the American people to testify to the unity on earth of God, and of man. Such testimony could take no more evident form than in the denunciation of chattel slavery in the founding itself. That denunciation is prominent beyond doubt or denial, in the documents of the founding. Men of reason can agree with men of faith, that neither God nor man could have devised a more dramatic event than our founding to demonstrate to the world the meaning inherent in this unity.

Slavery in the British colonies of North America was more than a century-and-a-half old before independence. It was roundly condemned, at one time or another, by nearly all the important political personages of the Revolution. I know of no instance in which any of these personages contradicted the doctrine of the Declaration, or maintained that slavery was a positive good. We must recognize, however, that slavery next to the family was perhaps the oldest institution of civilized mankind. Its origin in the ancient world came with the discovery that it was more profitable to enslave an enemy defeated in war than to kill him. The ancient law of the ancient city may be seen in the Bible. When the Israelites conquered Jericho, they put to the sword everyone in the city—men and women, young and old, sheep, oxen, and asses. Only Rahab the harlot and her family were spared, since they had given shelter to the Israelite spies. Later, in the custom of ancient warfare, the males of a defeated people would all be killed, but the women and children would be carried into slavery. Eventually the entire population of a defeated people would be enslaved. Such are the steps in the human story. That defeat in war meant slavery was the rule for many thousands of years.

Slavery came to the English colonies in North America in the 17th century because the colonists found themselves in possession of a vast continent, needing only cultivation to make it the homes of millions of free, prosperous, God-fearing human beings. Those who came from Europe would be refugees from the tyranny and oppression of feudalism, divine right monarchy, and religious intolerance. But converting this vast wilderness into cultivated lands required labor. It was nearly inevitable that someone would turn to tribal Africa for some, at least, of this labor. It is paradoxical but true that a large measure of the labor that turned America into a sanctuary for freedom came from slavery. The slave trade that developed between North America and the west coast of Africa is one of the great horror stories of Western civilization. It resulted also from the unlimited greed of the African chiefs who enslaved their brother Africans, and then sold them to white slave traders. They in turn sold them, for vast profits, into the new world.

The events of this story are morally indefensible. But the greed that motivated the human actors—excluding of course the slaves themselves—was so overwhelming as to be irresistible. It is impossible for us today who condemn the slave trade to imagine any effective opposition to it in the 17th century. A parallel in our time would be the unstoppable trade in narcotics. We can't stop the supply because we can't stop the demand. To the limitless demand for labor in the new world the slave trade was a limitless response. Like drugs today, laws against it were powerless, because the profits were so great. Opposition to the slave trade did come in time, in the principles of the American Revolution, but not before slavery had formed deep roots in the economy and polity of the United States. The foreign slave trade was outlawed by the United States in 1808, and it was made a capital crime in 1820, but the trade continued right up until the Civil War. It is good however to remind ourselves that no black slave was sold to a white slave trader, on the west coast of Africa, who had not already been enslaved by a black African. Slavery was an equal opportunity employer!

Slavery and the American Cause

The profound mistake of Reverend Wright's sermons is not that he spoke about racism in our society. It's that he spoke as if our society was static; as if no progress has been made.... But what we know—what we have seen—is that America can change. That is the true genius of this nation. What we have already achieved gives us hope—the audacity to hope—for what we can and must achieve tomorrow.
—Senator Barack Obama
speech at the National Constitution Center, Philadelphia
March 18, 2008
The "Declaration of the Causes and Necessity of Taking up Arms," on July 6, 1775, was the very first occasion for the American people to speak to the world with a single voice. In its first sentence, the Second Continental Congress affirmed without equivocation that the idea of the ownership of some human beings by other human beings was an utter absurdity, and that to think otherwise was incompatible with reason or revelation. Thus from the outset—a year before the Declaration of Independence—the American people were committed to the antislavery cause, and to the inseparability of personal freedom and free government. The American people knew from the outset that the cause of their own freedom and that of the slaves was inseparable. This would become the message that Abraham Lincoln would bring to the American people, and to the world, for all time. In the decade from the Declaration to the Constitution every state north of the Mason Dixon line, and north of the Ohio River, either abolished slavery or adopted measures leading to abolition. But in 1793 the cotton gin was invented, shortly after the power loom in England. This was the onset of the industrial revolution. Almost overnight, a new industry or rather a series of new industries, proliferating worldwide, was born. It began with the growing of cotton but was followed by its manufacture into a wide variety of products, especially cotton cloth and cotton clothing. Suddenly, slave labor became vastly more profitable. In the decade before the Civil War, the value of slaves doubled. Once again, greed overwhelmed all other motives. From being regarded as a temporary evil, as it was at the founding, slavery came to be regarded as a positive—and permanent—good.

This changed attitude toward slavery was, however, part of a changed attitude toward morality in general that was sweeping over Western civilization. This change was marked by the apotheosis of "change" itself. What had heretofore been regarded as moral absolutes came to be regarded as merely relative to a particular time and place—to History or Progress—with no enduring claim upon our consciences. Lincoln praised Jefferson for embodying in the Declaration "an abstract truth applicable to all men and all times." But the idea of such truth, and of the correlation of such truth with justice, was increasingly repudiated by the most educated and influential minds in the Western world. Representative of this triumph of historicism and moral relativism was historian Carl Becker's assertion in a landmark 20th-century work that "To ask whether the natural rights philosophy of the Declaration of Independence is true or false is essentially a meaningless question."

To ask whether what the American people in the Declaration of Independence had affirmed as truth was in fact truth, was now said to be meaningless. But if History or Progress or "change" is to be our guide, if the truth of relativism is to replace the truth of the Declaration, then the cause for which the nation fought at its birth, and in the Civil War, was meaningless, too. White power, black power, the Nazis, the Ku Klux Klan, Hitler, Stalin, Mao, Pol Pot, are as justifiable as Jefferson, Lincoln, or the doctrine of the equal natural rights of all human beings. We may understand how the Rev. Jeremiah Wright could so awfully misunderstand the American political tradition, inasmuch as it has been so very misunderstood for so long in circles from whom a better understanding could be expected. But this misunderstanding is a cancer which can in the end prove fatal, not only to a political campaign but to our country.

If we are to have a foundation upon which to continue to build a more perfect union, we must return unequivocally, as Lincoln returned, to the source of our greatness in the American Founding.

The American Founding as the Best Regime -Harry Jaffa-July 4, 2007

2008-09-10T23:50:00.000-07:00

In the great journal of things happening under the sun, we, the American people, find our account running, under date of the nineteenth century of the Christian era. We find ourselves in the peaceful possession, of the fairest portion of the earth, as regards extent of territory, fertility of soil, and salubrity of climate. We find ourselves under the government of a system of political institutions, conducing more essentially to the ends of civil and religious liberty, than any of which the history of former times tell us.

— Abraham Lincoln January 27, 1838

The Preamble of the Constitution crowns its enumeration of the ends of the Constitution by declaring its purpose to "secure the blessings of liberty to ourselves and our posterity." No words of the Constitution reveal the intention of the Constitution more profoundly than these. The Preamble is the statement of the Constitution's purposes, and this culminating purpose embraces and transcends those that have gone before. Alone among the ends of the Constitution, to secure liberty is called a securing of "blessings." What is a blessing is what is good in the eyes of God. It is a good whose possession—by the common understanding of mankind—belongs properly only to those who deserve it. We remember that the final paragraph of the Declaration of Independence appeals to "the Supreme Judge of the World for the rectitude of our intentions." It is by "the authority of the good people of these colonies" that independence is declared. It is because of this assurance of their rectitude that this good people, and their representatives, placed "a firm reliance on the protection of Divine Providence." We commonly call blessed those who enjoy in great measure wealth and health and freedom. And so it is that men pray for these things. Yet the sufferings of the innocent and the flourishing of the wicked—especially the great tyrants—teach us that to be blessed is not the same thing as to be in the enjoyment of worldly goods, of what Aristotle calls external goods. It is an element of the natural theology of mankind—that is partly implicit and partly explicit in the Declaration of Independence—that the compensations, both of evil and of good, are not altogether those visible in the natural order. Hence Aristotle says that what men should pray for is that these external goods be good for them. When men are poor, they seem to wish only for wealth. When they are ill, for health. When they are enslaved, they long only for freedom. This is altogether understandable.

Nevertheless, reflection teaches us that the possession of health, wealth, and freedom are not the ultimate measure of human well-being. We know that there have been human beings who, being in the full possession of health, wealth, and freedom, have yet committed suicide. Health, wealth, and freedom must be combined with something else before they become ingredients of the human good, before they become blessings, properly so called. Aristotle says that no man, even with all the other goods for which men pray, would wish to live without friends. And—although they are usually surrounded by flatterers—tyrants do not have friends, certainly not the kind of friends who make life worth living. The Virginia Bill of Rights of June 12, 1776, affirmed a fundamental principle of the Revolution and of the Founding—providing by anticipation a gloss upon the words of the Preamble—when it declared that:

…no free government, or the blessings of liberty,can be preserved to any people, but by a firmadherence to justice, moderation, temperance, frugality, and virtue, and by a frequent recurrence to fundamental principles.

The idea of liberty—or the liberty which is a blessing—being an emancipation of the passions from moral restraint had no place in the constitutional doctrine of the novus ordo seclorum. The liberty which is a blessing must be good for the one who possesses it. It must therefore be a good in the sight of God, who is the source of blessings. Such a good must point to felicity, whether in this world or the next, as its consummation. By calling the advantages of liberty "blessings," the Constitution, which in certain respects makes perhaps the most radical break in all human history with all that has gone before it, nonetheless, in its understanding of the connection between happiness and virtue, aligns itself decisively with traditional moral philosophy and moral theology.

* * *

The Constitution of the United States meant to do what, in fact, it has done. By grounding the regime in the doctrine of human equality, proclaimed in the Declaration of Independence, it has, as Lincoln said, cleared paths for all, given hope to all, and, by consequence, enterprise and industry to all. To a degree hitherto unimagined as possible, it has lifted the burden of unjust inequality—"the oppressor's wrong, the proud man's contumely"—from the backs of the common people. As the Virginia Bill of Rights shows, the Framers never conceived the blessings of liberty in nonmoral terms. They never imagined it to encompass the exhibitionism of lesbians, sodomites, abortionists, drug addicts, and pornographers. The people are the source of the authority of the Constitution—of all lawful authority. In Jefferson's words, the people "are inherently independent of all but moral law" (letter to Spenser Roane, September 6, 1819) Let us not, however, forget, that "but." Absent the moral law, a people becomes a mob. And mobs give rise not to free government, but to despotism. That is the theme of Lincoln's Lyceum speech in 1838.

* * *

In the beginning of the Lyceum speech, Lincoln speaks of our political institutions "conducing more essentially to the ends of civil and religious liberty, than any of which the history of former times tells us." Speaking thus has become so idiomatic that it is difficult to recapture the novelty it once possessed. The first amendment, in a single sentence—divided, however, by a semicolon—joins together its civil and religious guarantees. Although it is customary to speak of "civil" before "religious," the first amendment actually reverses this order. This is not accidental. Without the establishment of religious Liberty—without the removal from the political process of sectarian religious questions—a regime combining majority rule with minority rights is not a feasible enterprise. The problem of democratic constitutionalism was expressed succinctly by Jefferson in his inaugural address.

All too will bear in mind this sacred principle, that though the will of the majority is in all cases to prevail, that will to be rightful must be reasonable; that the minority possess their equal rights, which equal law must protect, and to violate would be oppression.

It is clear from the foregoing that "rightfulness" and "reasonableness," being restraints upon the will of the majority, are not themselves mere expressions of will. Here Jefferson is not only saying what the Constitution is, but why it is what it is. In truth, the "what" of the Constitution is inseparable from its "why," and the attempt to understand the former without the latter is—all but the simplest cases—vain. Yet this is precisely what Chief Justice of the Supreme Court William Rehnquist attempts when he writes, for example, that constitutional "safeguards for individual liberty" are grounded neither in "intrinsic worth" nor in "someone's idea of natural justice," but simply in the fact that "they have been incorporated in a constitution by the people." The Framers' ideas of natural justice were the very ground and origin of their intent. To appeal to the conception of "original intent" in interpreting the Constitution—as do Justices Rehnquist and Antonin Scalia and Judge Robert Bork—while denying the ideas of natural justice which formed the "why" of the Constitution, is to go to the uttermost limit of self-contradiction.

James Madison, in his essay on "Sovereignty," written near the end of his life, restated the theoretical arguments that had guided both him and Jefferson in their long political careers. The occasion, of course, was his bitter struggle against Nullification—the South Carolina doctrine whose principal author and exponent was John C. Calhoun. And the necessary condition for Calhoun's entire teaching was the rejection (like Justice Rehnquist) of the idea of natural equality—and natural justice—that had animated the Founding. Legitimate political authority, according to Madison, always arises from an agreement ("compact is the basis of all free government") made between men who are by nature—or originally—equal, none having more authority over another than the other has over him. It is the primordial fact "that all men are created equal" which is the ground both of majority rule and of minority rights. Hence it is that Lincoln would call this proposition "an abstract truth, applicable to all men and all times," and why he would, at Gettysburg, rededicate the nation to it.

Sovereignty, then, has its ground in the natural right to rule oneself that every human being possesses. Sovereignty in the political sense—what we ordinarily call sovereignty—arises when men transfer their right to rule themselves to a civil society, which can do for them what they cannot do for themselves. Civil society, according to Madison, is constituted by the unanimous consent of its constituent members. But civil society is ruled by the majority. The majority is the surrogate for that unanimity which brought the polity into being, but which cannot be the continuing basis for the decisions required by governments if they are to answer the purposes for which they are instituted. That the will of the majority should prevail is a "sacred principle" because the authority of the majority is derived from those natural rights with which all men have been equally "endowed by their Creator." A civil society is perfectly formed, to the extent that each and all of the contracting parties recognize in each other that equality of rights—and of right—which makes the will of the majority "sacred." For the majority, being the substitute or surrogate for the whole, must represent the minority as well as itself. The majority must understand that it is acting on behalf of the people as a whole, and hence the minority no less than the majority. And the minority must look upon the majority as governing in the interests of all, however much it may disagree with the particular measures adopted by the majority. We all recognize this when we speak, for example, of the representative from our congressional district as "our" representative whether we voted for him or against him. And we all recognize that the President of the United States is equally the President of every citizen of the United States. Majority and minority are then essentially divided only by the questions of what means ought to be adopted, for the sake of the ends which are common to all. Hence the Declaration of Independence proclaims "that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it…." The Declaration is speaking here of the people as a whole, but this whole is constituted by its contracting individuals. The right to "alter or abolish" belongs to any majority faced with a will external to itself—as in the case of the King and Parliament of Great Britain. But it also belongs to any minority faced with a majority that ceases, as Jefferson says, to be "reasonable," and which passes laws which violate the "equal rights" of their fellow citizens. Madison, in his essay on "Sovereignty," defines the limits of the authority of the majority by reference to whatever might be done rightfully and by unanimity. The qualification of unanimity refers back to the original constitutive principle of the polity. Unanimous consent is, however, the necessary but not the sufficient condition of government that is nondespotic. The community of Jonestown apparently committed suicide by unanimous consent. Unanimity did not make that action reasonable, or even nondespotic—surely not for the hundreds of children who were put to death by their consenting but deluded parents. Rightfulness implies moral understanding, that "rectitude" upon which the "good people" of the colonies relied in submitting their consciences to "the Supreme Judge of the world." It implies, to repeat, that "moral law" mentioned by Jefferson, without which the authority of the people itself fails. For the rights set forth in the second paragraph of the Declaration of Independence, the rights to "life, liberty, and the pursuit of happiness," are not unconditional justifications for idiosyncratic behavior. They are rights under the "laws of nature and of nature's God." They are not rights authorizing actions which, by those laws, are wrongs. Slavery was, from the outset, no mere paradox in a land of freedom. It was a contradiction of every right to which the American people had themselves appealed when asserting their own right to nondespotic government.

* * *

The constitutionalism of our Founding is inseparable from its moral realism and its natural theology. Tocqueville praised the effect of disestablishment in America and called religion the first of our political institutions precisely because of it. By removing theological differences from the political arena, men could worship God freely according to the dictates of their consciences. But however differently they might conceive of the divine attributes, or however different the forms of worship which in their eyes were pleasing to God, there was a common understanding of morality underlying—or transcending—religious differences. This common understanding was strengthened by all the churches, just by the fact that it was not called into question by their theological differences. By strengthening this moral consensus, disestablishment promoted confidence and even friendship among the citizens. By doing so, it promoted a regime in which the rule of the majority might be consistent with the rights of the minority. But the practical achievement of such a regime was a hard one nonetheless. Without the doctrine of disestablishment and religious freedom it would have been impossible.

The obstacle to Union that arose over slavery could never have been surmounted had not the bonds of Union been sowed in the idea of religious freedom, for the idea of religious freedom encompasses and promotes moral law independently of any particular dogmas of revealed religion. Equally important, it lays the foundation for the idea of limited government in its full extent, and not only with reference to the question of religion. Why this is so, we shall presently say. First, in attempting to define the nature of its limits, let us take note of the crucial tests in the early years of the Constitution—tests it could never have survived had not the doctrine of religious liberty placed the religious question outside its boundaries.

* * *

In the election of 1800, the control of the government of the United States passed substantially from the hands of the Federalists to that of the Republicans. To the best of my knowledge, this was the first time in human history that any such change in the offices of government had ever occurred on the basis of a free popular election. No such election happened in England until well into the nineteenth century. It was not until long after the American Revolution that the King—who could not be constitutionally replaced by any electoral process—ceased to be the executive head of government. Ministers were responsible to the Crown, not to the Parliament. The King secured his majorities in Parliament, not by calling elections, but by manipulating the patronage. That is what Alexander Hamilton had in mind when he said that without corruption the British Constitution was unworkable. And, of course, not until after 1832 could there be said to be anything like a popular election even for the House of Commons.

During the 1790s in France, in the course of the French Revolution, something like ministerial responsibility to the elected Assembly did occur, anticipating the future course of parliamentary democracy. Unfortunately, the special ceremony for outgoing ministers made it impossible for them to form a loyal opposition or to contest future elections. The election of 1800 in the United States was the the first time that the losers gave up their offices peacefully and the winners did not proscribe their defeated opponents by death, imprisonment, loss of property, exile, or even the loss of civil or political rights.

Exactly what contested elections were to mean under the new Constitution was an unresolved question until 1800. The presidency of George Washington happily postponed many such questions, while the new government gained stability and strength under the shelter of Washington's towering prestige. The election of 1796, while hotly contested, returned the party in power to office. The fact that the Constitution of 1787 called for each elector to cast two ballots for President—with the vice-presidency going to the runner-up—showed that the Framers did not anticipate the kind of partisan contests that actually developed. When Jefferson and Burr received the same electoral vote in 1800, the Constitution had to be amended so that electors henceforth distinguished their votes for President and Vice President. The Alien and Sedition Acts of 1798 revealed profound uncertainties as to what a regime of liberty meant in the face of fierce party contests for control of the government.

It cannot be emphasized too strongly, however, that America was forging the principles of modern democracy for all humanity, and doing so with no precedents to guide her. The party contests of the 1790s were the bitterest in American history—more so, even, than those that preceded the Civil War. In part, this was because the very idea of settling such deeply felt differences by free elections was an idea struggling to be born. And we must never forget that that idea required a rebirth—a new birth of freedom—before it was in any sense finally accepted, for the achievement of the election of 1800 did not survive 1860. That year, the party that lost the decision of the vote withdrew from the government rather than accept that decision.

It was Lincoln's genius to explain more lucidly and compellingly than ever before the inner connection between the great proposition of human equality and the necessity and propriety of free elections. It was Lincoln's fate to explain—in the presence of a gigantic rebellion against the decision of the polls—why the decision of the ballots might not be reversed by bullets. And it was Lincoln's fate to explain why, in the end, the war to defend the sanctity of the ballot box and the war to end slavery had to become one and the same.

But Jefferson was Lincoln's teacher. And Jefferson, who in the electoral contest of 1800 had not been lax in the invidiousness of his description of his political opponents, nonetheless declared, in his inaugural address, that:

…every difference of opinion is not a difference of principle. We have called by different names brethren of the same principle. We are all Republicans, we are all Federalists.

Jefferson did not mean by this that the electoral process was indifferent to differences of principle.

If there be any among us who would wish to dissolve this Union or to change its republican form, let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated where reason is left free to combat it.

To tolerate error is not to be indifferent to error. Jefferson did not suppose that free government could survive in the absence of sufficient and authoritative opinion in its favor. To worship God according to the dictates of one's own conscience, and not to suffer any civil disability for doing so, is not a matter of tolerance. It is a matter of right. Nor does Jefferson think that there is a right either to dissolve the Union or to change its republican form. Those who would do so merit toleration, but only because of the "safety" with which such toleration may be extended. Yet the day came when it was no longer safe to repeat Jefferson's own condemnation of slavery in many states of the Union. The day came when those states, rather than tolerate anti-slavery speech or contemplate its political consequences, attempted to dissolve the Union. Then it was that Jefferson's confidence in the power of the truth to prevail was put to a supreme test.

* * *

As we have noted, in the single sentence that is the first amendment, the religious guarantees come first. The guarantees after the semicolon—speech, press, assembly, petition—are all active elements in the political process and are intended to provide for its integrity. Freedom of religion is understood to be necessary for the integrity of the political process in the negative sense that such questions as what religion should be established would be an intolerable burden upon that process. Civil and religious liberty are distinct, yet it is good that we regard them as inseparable. Their "bonding" (to use a currently fashionable phrase) is, in a peculiar sense, the achievement of the United States of America.

Consider the status of religious liberty in England—deemed by all the Founding Fathers as the freest government to precede our own, and the model for many of its features. Let us recall Lord Macaulay's celebrated passage on the Toleration Act of 1689, a constitutional pillar of the Glorious Revolution:

The sound principle undoubtedly is, that mere theological error ought not to be punished by the civil magistrate. This principle the Toleration Act not only does not recognize, but positively disclaims…. Persecution continues to be the general rule. Toleration is the exception…. That the provisions…are cumbrous, puerile, inconsistent with each other, inconsistent with the true theory of religious liberty, must be acknowledged. All that can be said in their defense is this: that they removed a vast mass of evil without shocking a vast mass of prejudice….

It was wonderful that such a vast mass of evil was removed by this great law. It was wise of the Parliament not to attempt to assert "the true theory of religious liberty" in the face of such "a vast mass of prejudice." We are reminded that a nation can proceed upon the ground of a "true theory" in the face of such prejudice only by imposing upon the nation a will external to the nation itself. This alternative was known to our Founding Fathers as "enlightened despotism," but they rejected it on the ground that the enlightened consent of the governed was the only durable foundation for free or good government. But the necessity for enlightenment in the consent of the governed was never far from their thoughts. Free government was never possible apart from it. The foundations of American government, wrote Washington in 1783,

were not laid in the gloomy ages of ignorance and superstition, but at an epoch when the rights of mankind were better understood and more clearly defined than at any other period.

And wrote Jefferson in 1816:

If a nation expects to be ignorant and free in a. state of civilization, it expects what never was and never will be.

The American Revolution and the American Constitution became possible only because the rights of man as man—the rights of an enlightened humanity under the moral order of the laws of nature and of nature's God—defined the ground of civic friendship, subordinating the ancient distinctions, not only of religion but of ethnicity and race. Among the most remarkable but least-remarked features of the Declaration of Independence is the passage in which, after assigning a measure of responsibility to "our British brethren" for the tyrannical acts of their government, the Americans "hold them, as we hold the rest of mankind, enemies in war, in peace friends." The ancient distinctions of Greek and barbarian, of Jew and Gentile, of Christian and infidel, here disappear as the ground of human friendship and therewith of civic association.

It is true that the distinction is made, within the Declaration, between civilization on the one hand, and barbarism and savagery on the other. The distinction between the first and the latter two is the distinction between those who do and those who do not respect the rights of others, under the laws of nature. Of course, the necessary ground for such respect is enlightenment: One cannot act on principles of which one is ignorant. As I have often written, the United States is the first nation in the world to declare its independence, not because of any particular qualities or merits of its own, but because of rights which it shared with all men everywhere. In so doing, it declared the ground of "government of the people, by the people, for the people" in a sense absolutely unprecedented. In so doing, it laid an equally unprecedented claim to the character of the best regime of Western civilization.

This latter claim cannot be understood in the light of the doctrine of the best regime as it is found, for example, in Plato and Aristotle. For them, the best regime was that of "the examined life" as defined by Socratic skepticism. Moral virtue, although necessary for human happiness, did not represent in itself the highest of all possible ends: that was to be found in purely contemplative activity. Biblical religion, however, found not the examined life, but the life of obedient love of the living God, to be the highest of all possible ends of human existence. Like classical philosophy, biblical religion finds that man's highest end transcends morality. For man's highest end, his relationship with God, is a transmoral end. Biblical religion presupposes a living God whose existence is primarily and essentially a matter of faith. Whatever demonstrations unassisted reason might make of God's existence and attributes may complement or supplement the teachings of faith. But they can never supplant faith as the ground of belief.

Philosophy, the way of life grounded upon the powers of unassisted human reason, can never refute the existence of the biblical God or the possibility that the best way of life is not that of the examined life. The skepticism that is the core of philosophy, the honest skepticism that must always be distinguished from dogmatic skepticism, always leaves philosophy open to the challenge of revelation. It always leaves philosophers open to the undeniable fact that the claims of autonomous human reason cannot be fully vindicated by that reason. It always leaves philosophers open to the possibility that the fully consistent life—the life that the philosopher himself longs for above all others—is possible only on the basis of revelation.

What we call Western civilization is to be found primarily and essentially in the confluence of the autonomous rationalism of classical philosophy and the faith of biblical religion. As Leo Strauss has said, the vitality—and the glory—of Western civilization is to be found above all in the "mutual influence" of these two irrefutable, irreducible principles of human life. The dynamic of Western civilization is the dynamic of their interaction. The triumph of Western civilization is to be found in the evidence, supplied by both philosophy and revelation, that the human soul, no less by the questions it asks than by the answers it believes it has discovered, participates in a reality that transcends all time and change. The tragedy of Western civilization has been the unfettered attempt, by political means, to vindicate claims whose very nature excludes the possibility that they can be vindicated by political means. To attempt to overcome the skepticism that is the ground of philosophy is like trying to jump over one's own shadow. To attempt to remove the necessity of the free and unconstrained faith that is the ground of the Bible and of biblical religion is like denying the existence of the shadow by jumping only in the dark—or with one's eyes shut!

The unprecedented character of the American Founding is that it provided for the coexistence of the claims of reason and of revelation in all their forms, without requiring or permitting any political decisions concerning them. It refused to make unassisted human reason the arbiter of the claims of revelation, and it refused to make revelation the judge of the claims of reason. It is the first regime in Western civilization to do this, and for that reason it is, in its principles or speech (leaving aside the question of its practice or deeds), the best regime.

But the virtue of the American Founding rests not only upon its defusing of the tension between reason and revelation, but upon their fundamental agreement on a moral code which can guide human life both privately and publicly. This moral code is the work both of "Nature's God"—reason—and the "Creator"—revelation. Religious freedom properly understood is a principle which emancipates political life not only from sectarian religious conflict, but from the far profounder conflict between reason and revelation. Indeed, it makes reason and revelation—for the first time—open friends and allies on the political level. For they are, to repeat, agreed upon the nature and role of morality in the good society.

But radical modernity is the enemy equally of autonomous human reason and of biblical revelation. The core of radical modernity is radical skepticism, a dogmatic skepticism that denies that we do have, or can have, any genuine knowledge of the external world. This dogmatic skepticism denies that either philosophy or revelation in the traditional understanding are possible. It denies that either Socrates or the prophets could ever have distinguished, as Thomas Hobbes put it, whether God had spoken to them in dreams or they had dreamed that God had spoken to them. Hobbes was the precursor of modern scientific positivism, which regards all knowledge as essentially hypothetical and experimental. Its core conviction is that we know only what we make. In constructing a world from hypotheses, we ourselves are the source of all creativity: there is neither need nor room for God. In constructing a world from hypotheses, we have a priori perfect knowledge of that world: there is neither need nor room for philosophy.

Since there is no a priori knowledge in nature or of nature (no "self-evident" truths) to guide the human will, the human will must itself be the a priori source of all knowledge. Unfettered will is the ground, then, of all morality. That is why National Socialism—which understood itself as "The Triumph of the Will"—is the prototypical modern regime. Long before Hitler, though, it was Marx who wrote: "The philosophers have hitherto only interpreted the world. The point, however, is to change it." Marx meant by this that traditional philosophy—an attempt to interpret or understand the world—was illusory. He believed that genuine knowledge of the world was possible only by changes in the world that originated in one's will. Hence the highest form of intellectual activity—of philosophy—was to be found not in speculation or theory, but in practice or revolution. The supreme revolutionary is the supreme philosopher. The outcome of the most radical revolution is therefore the highest form of wisdom. Hence "the inner truth and greatness" of Hitler's revolution and of Stalin's is one and the same. As such it is beyond skepticism. To doubt becomes treason and is punishable as such, for the aim or purpose of radical modernity—of modern philosophy in its final form—is the elimination of skepticism from human life, the transcendence of the opposition between reason and revelation by the abolition of both.

Dogmatic skepticism leads, then, to a scientism, of which totalitarian regimes are the natural and culminating manifestations. But the scientism of dogmatic skepticism is today endemic to the universities of the free world. This dogmatic skepticism is typically expressed as "value relativism," and is found in the writings of the Chief Justice of the United States as well as those of nearly all the so-called philosophers and social scientists of our universities. "Value relativism" is commonly but mistakenly associated with toleration of different opinions. In fact, it denies the rational or divine foundation of any virtue, including that of tolerance. But if there is no human or divine reason to prefer one opinion to another, neither is there any such reason to prefer one regime to another. If knowledge is power, the most powerful opinion is the best opinion. And there is no reason why the most powerful opinion—from which any skepticism concerning its own truth has been eliminated—should give place to any less powerful opinion. Relativism thus undermines the confidence that free government once had in its own truth, the kind of confidence with which the United States in 1776 proclaimed its right to an equal station among the powers of the earth. Relativism thus leads ultimately but inevitably toward the worst forms of tyranny.

It is sometimes said that the American Founding, as an expression of modern (notably Lockean) political philosophy, lowers the ends of human life in order to make them more easily attainable. For Americans, comfortable self-preservation, implemented by free-market economics and the scientific enhancement of man's productive powers, replaces eternal salvation or contemplation as the end of man. Whatever may be true of the thought of John Locke, this is not the way in which the American Founding understood itself. The American Founding limited the ends of government. It did not limit the ends of man. The ends of the regime, considered as ends of government, were lowered. But the ends both of reason and revelation served by the regime, in and through the limitations on government, were understood to enhance, not to diminish, the intrinsic possibility of human excellence. As long as the idea of human excellence itself survived, as understood by the great tradition of Western civilization—the civilization of the Bible and of classical philosophy—the dignity of the American Founding remained that of man's highest ends. It is the outright denial—within the very citadels of learning, the universities—of the dignity of reason and of revelation that threatens the eclipse of the American Founding, and therewith of Western civilization itself.

* * *

We have noted Macaulay's reference to "the true theory of religious liberty." This theory has its classic affirmation in the Virginia Statute of Religious Liberty of 1786, whose author was Thomas Jefferson. It is often said, and correctly, that Jefferson wrote with Locke's Letters on Toleration before him. But Jefferson, in writing that "our civil rights have no dependence on our religious opinions any more than our opinions in physics or geometry," was more absolute and categorical than Locke. Jefferson allowed no exceptions for Jews, Catholics, or atheists. (This, incidentally, did not mean that he was an atheist any more than it meant that he was a Jew or a Catholic!) If "the true theory of religious liberty" was not recognized by the laws of England in the seventeenth or eighteenth centuries, neither was it recognized in the public laws of any other government before the American Founding. Indeed, it could not be so recognized as long as the ground of political authority was understood to originate in divine law. In the American Founding, the social contract theory of the Declaration of Independence and the doctrine of religious liberty in the Virginia Statute—both authored by Jefferson—are two sides of one coin. The rights with which all men are by nature equally endowed qualify any man to enter into an agreement with any other man (who is willing to agree with him) to form a civil society.

Political obligations are obligations flowing from such an agreement, and obeying the law is simply keeping one's promise. The authority of government is collective promise-keeping of all the parties to the social contract. Such a contract, by its nature, excludes religious stipulations, since any such stipulations or reservations would be inconsistent with the equality which is the foundation or condition of the contract. Moreover, the sovereignty of the individual who is the party to the social contract means that the government arising from this contract is limited government. This follows from the intrinsic nature of contract itself. A contract can only be made between equals, and can obligate no further than the intentions of the contracting parties.

Here we reflect upon the radical novelty, two hundred years ago, of the idea of limited government based upon the social contract of men created equal. The ancient city understood itself altogether as a creation of divine law. We are familiar, from the Old Testament, with the ancient Mosaic polity. We read it for the story of God's covenant with Israel and the origins of the Messianic promise which Christians believe was fulfilled in Jesus. However unique the Bible is in these respects, in others it is typical. The conception of political obligation—as set forth in the Declaration of Independence—simply did not exist for ancient man.

Plato's Laws begins with the Athenian Stranger asking the Cretan and the Spartan, "A god, is it, or some human being, who is credited with laying down your laws?" The Cretan answers for both himself and the Spartan, "A god, Stranger, a god." Ancient man obeyed the laws because they were of divine, not human origin. If a city was defeated in war, that meant its gods were defeated by stronger gods, and men might, without any sense of disloyalty, transfer their allegiance to the gods of their masters. Here the Jews were different in that by holding that their God alone was God, they would not admit that their God could be defeated—nor that they could have any just reason to be faithless to him.

The conception of religion, as we understand it, was as unknown to Socrates as it was unknown to Moses or to Jesus, for we distinguish religious from nonreligious spheres of life, just as we distinguish church from state, state from society, and society from government. In denying the charge of impiety, it seems never to have occurred to Socrates to deny that impiety was a crime. In defending his philosophical mission, he did so by discovering its origin in a command of the oracle of Delphi—a god recognized by the city of Athens. He insisted that it would be impious for him to disobey that command. The worship of the golden calf was a revolt against the authority of Moses—and of God. There was no ground for distinguishing the infidelity of the rebelling Israelites from their lawlessness, since there was no other source of law than God. In this, however, we see the principle of every ancient city, and not of Israel alone.

The laws of Moses regulated all aspects of human life, mental as well as physical, private as well as public. If we think of orthodox Judaism today, we think of freely chosen personal obligations. But in ancient Israel, these laws were inescapable. We have recently had something of a glimpse of the ancient city in the Islamic republicanism of the Ayatollah Khomeini and in the exhortations of Meir Kahane. How typical of the ancient city were the laws of Moses, however, we may glean from Aristotle's dictum: "Whatever the laws do not permit, they forbid." It took one of the greatest revolutions in human consciousness to change that to "Whatever the laws do not forbid, they permit."

In the New Testament, we see ancient Israel not as an independent polity, but as a conquered province of the Roman empire. When Jesus said to render to Caesar the things that were Caesar's and to God what was God's, he was making an eminently prudent statement. Contrary to a common opinion, he was not distinguishing between church and state, private and public, or religion and government. Jews had to pay tribute because the Roman legions were there to enforce payment—and to crucify anyone who resisted the authority of Rome. But the Romans were interested only in collecting tribute, and were content to let the peoples they had conquered live under their own laws and gods—these being indistinguishable. Had Jesus lived at the time of Moses or Joshua or David or Solomon, he would never have distinguished, as he did, between God and Caesar. Hence Jesus never meant to characterize all political authority as that of Caesar. When he spoke of "Caesar" he was not speaking symbolically; he meant the conqueror of his people, whose regime rested upon force alone. Government deriving its just powers from the consent of the governed is no more properly characterized as "Caesar" than is the government of ancient Israel under the laws of Moses. Nevertheless, it was the transformation of the Rome of the Caesars into the Holy Roman Empire that ended the ancient world and created the distinction—and opposition—of church and state.

The ancient world—the world of the ancient city—may be said to have come to an end when, in the third century of the Christian era, the Roman emperors extended Roman citizenship to the provinces. This, we observe, represented less of an elevation of the provinces than it did a leveling of Rome. Rome had become an imperial military despotism. The emperor's horse—or perhaps merely the latter half of his horse—could become a Senator. The self-governing institutions of republican Rome were dead. Rome was the administrative center of a regime that had no political center, because "the government of men had been replaced by the administration of things." The heart of the process whereby politics is replaced by administration is presented to us unforgettably in Shakespeare's Antony and Cleopatra.

Rome's conquest of the ancient world ended the civic life of the independent poleis. The gods of the conquered cities continued a shadowy existence for some time. When, however, everyone might become a Roman citizen, there was in principle but one authority for law. The gods who had been the many authors of the many laws of the many cities flickered out and died. There was only one city, which was no longer an ancient city, but the empire of the world. But by the logic of the ancient city—which to this point dominated the consciousness of civilized mankind—a single source of law implied a single God. It took little more than a century after the extension of Roman citizenship to the provinces before Constantine's conversion to Christianity began the process of transforming Rome (and the world understood as Rome) from polytheism to monotheism. Whether there was a providential necessity in this—as Aquinas and Dante and Shakespeare seem to have thought—there was certainly an inherent compulsion of reason in saying: one city, one law, one world, one God. That this God should be the God of Israel partakes of the same logic, for the God of Israel was not only understood to be the only God, but one who transcended the universe of which He was held to be Creator. Such a God could not be defeated by the legions of Rome or of any other power, whether in the world or out of the world.

The establishment of Christianity in the Roman empire obeyed the logic of the ancient city, in that membership in the political association carried the implied requirement of acknowledgment of, and obedience to, the God of that empire. The concept of heresy was virtually unknown to the ancient city. What Socrates was accused of is better understood as resembling what we might call being "un-American," that is, of disloyalty. Ancient cities lived on narrow margins of survival, and defeat in war could mean extinction or slavery. All the civic gods tended to be jealous gods for that reason. Belief as such was not central to fidelity. Obedience was central. But the Christian empire made belief central to fidelity, and heresy assumed an unprecedented gravity as an offense against the good order not merely of civil society, but of the world. While belief was elevated to an unprecedented level, obedience sank correspondingly. The decline and fall of the ancient empire replaced centralized Roman administration with the most decentralized, and most lawless, of regimes: feudalism. The Christian God of the Holy Roman Empire was not the author of the laws of France, Germany, England, Spain, or any other part of the Holy Roman Empire, in the sense in which He had been the author of the laws of Moses. He was the sanction for obedience to all the rulers—or laws—that were to be obeyed. But these laws were regarded as laws for a variety of reasons, ancient custom or tradition being foremost. And the divine law—the characteristic form of all law in the ancient world—was no longer the law of the earthly but of the heavenly city.

The extension of Roman citizenship to the provinces, followed by the establishment of Christianity, created a problem that went unsolved in the Christian West for a millennium and a half. That problem was how to discover a source of law for particular political communities within the larger framework of the cosmopolis of the city of God. A single political structure for all of Christendom, much less all of mankind, proved to be impossible. As Thomas Aquinas taught, human law must embody the prudence of the ruler. But who ought to be the ruler? And how are the governed to recognize their obligation to obey him? Aristotle addressed himself to the question of who should rule, and did so in terms of the moral and intellectual excellences that might comprise regimes. His answers were designed to gain acquiescence by philosophers and gentlemen. But he expected the generality of mankind to accept the judgments of the wise because they would be attributed to the gods. Thomas followed Aristotle, but Aristotle offered no solution to the problem of Christian empire. Dante, in one of the most remarkable works ever composed, developed an argument for universal empire based upon Aristotle's Metaphysics, while ignoring his Politics. This fact itself illuminates wonderfully the dilemma of the Christian West—and the causes of the wars of the Reformation—before the American Revolution.

In Protestant countries, the Reformation removed the anointing (and the excommunicating) of secular rulers from the jurisdiction of Rome. The doctrine of the divine right of kings was invented to enable kings to be anointed by bishops they had themselves appointed, rather than by appointees of the Pope. The interests of national kings and their peoples were certainly closer than those of popes or emperors. But however much the interest of kings and their peoples might seem close at a time of national peril—as at the time of the Spanish Armada—at other times they might be in the harshest conflict, with ensuing revolutions and civil wars. The national Church of England, established by Henry VIII's break with Rome, had as its most fundamental doctrine that of passive obedience to the king, under all circumstances and at any cost. But such a doctrine could not survive the contingency of the King himself becoming Catholic. In the Glorious Revolution of 1689, the Church of England itself was converted from the divine right of kings to popular sovereignty, exercised in and through the Parliament.

Long before the writings of Hobbes and Locke, Christianity sowed the seed of what we have come to call individualism by establishing a direct personal relationship between God and every human being. Nothing dramatizes this better than the opening scene in Bunyan's Pilgrim's Progress, in which Christian is fleeing from his family, crying out "What shall I do to be saved?" Salvation—citizenship in the City of God—is individual. Individuals are held to be saved by Christ's merit, but not by that of father or mother or brother. I do not mean to say that Christianity in any way devalued the family, only that family, clan, tribe, nation, the community of blood descendants, ceased to have the integral moral, political, and religious unity they possessed in the ancient city. A citizen of ancient Israel, living under the laws that God had given to Moses, believed himself to be already living in the city of God. In the ancient city—and the Old Testament here is typical—the individual sees himself primarily as a link in the chain of ancestors and descendants. Individuality—including personal immortality—plays virtually no role as a paramount concern. In the Christian Roman Empire, the Church was the visible representative of the City of God, but the City itself was not of this world. As personal immortality in the City of God came to be the paramount concern of Western man, political life was displaced from the central place in human life it had occupied in the ancient city.

The social contract theory embodied in the American Declaration of Independence solved a problem that had plagued Western civilization for more than a millennium and a half. Political authority was to be rooted in each particular political society as the result of the voluntary action of naturally free and equal individuals, whose natural freedom and equality was seen to be as much a dispensation of God as membership in the City of God. These free and equal individuals are enfranchised in the rights that they bring with them into civil society by the fact that they are a priori under the universal "laws of nature and of nature's God." There is then no tension between one's membership in that larger community, which in principle embraces all mankind, and one's particular obligations to one's own community, here and now. The Declaration of Independence recognizes, as did the medieval church, the divine government of the universe. But this government, while providing a pattern for human government, does not cause any divided allegiance in one's political obligation here on earth. The role played by the power of the Church to excommunicate rulers, and to dissolve the allegiance of their subjects, becomes in the Declaration the right of revolution.

But the power of the church—that is to say, of all the churches, or of whatever means a man may choose to direct his own way to his highest end—remains free of civil authority. This bonding of civil and religious liberty is the core of the idea of limited government, and hence of freedom in our world, for we are compelled both to rely upon and to enjoy a degree of personal autonomy that was inconceivable in the ancient city. But the principles by which this autonomy is to be guided—what Jefferson called the moral law—remain the same. And the ground of that autonomy is still the revelation and the reason that are our inheritance from the ancient cities of Athens and Jerusalem. The new order of the ages is radically novel in its solution of the political problem within the framework of a cosmopolitan, monotheistic universe. It is radically traditional in its conception of the ends, whether of reason or of revelation, to be served by that order.

Today we are faced with an unprecedented threat to the survival of biblical religion, of autonomous human reason, and to the form and substance of political freedom. It is important to understand why the threat to one of these is also the threat to all. It is above all important to understand why this threat is, above all, an internal one, mining and sapping our ancient faith, both in God and in ourselves. The decline of the West is the paramount reality facing us today. Perhaps our most immediate danger comes from the historical pessimism of those who counsel us that this is inevitable and that nothing can be done by taking thought. But this danger is itself a danger only if we believe it. It is precisely by taking thought that this superstition can be dispelled and, with it, the unreasoning fears that it breeds. As we enter this third century of the Constitution, let us renew our ancient faith, the faith of Abraham Lincoln,that right make might, and in that faith let us, to the end, dare to do our duty as we understand it.

Where the Canidates Stand

2008-09-10T23:28:00.000-07:00

As the California Marriage Amendment debate heats up Barack Obama and John McCain have made clear their respective positions on the issue.

Two weeks after the California Supreme Court announced its decision to allow same-sex couples to “marry”, opponents of same-sex marriage succeeded in placing on the November ballot a proposed constitutional amendment which states: “Only marriage between a man and a woman is valid or recognized in California.” If passed, the measure would reverse the recent court decision.

Mr. Obama recently made his position public in a letter sent to a San Francisco homosexual activist group.

“I oppose the divisive and discriminatory efforts to amend the California Constitution, and similar efforts to amend the U.S. Constitution or those of other states,” wrote Mr. Obama, the presumptive Democratic presidential nominee.

At the same time John McCain has announced his support for the California Protection of Marriage initiative in an email received by the ProtectMarriage.com campaign.

“I support the efforts of the people of California to recognize marriage as a unique institution between a man and a woman, just as we did in my home state of Arizona. I do not believe judges should be making these decisions,” Mr. McCain stated.

In a press release commenting on the endorsement of Senator McCain, ProtectMarriage.com Chairman Ron Prentice said, “We are honored to have the support of Senator McCain. As a leader in the United States Senate and the presumptive Republican presidential nominee, Senator McCain’s position will be an important factor to millions of Californians.”

“Senator McCain has articulated a key feature of the initiative campaign, which is that voters and not judges should be determining this issue.”

“Over 61% of the electorate has already voted to reaffirm marriage as between a man and a woman. Four activist judges on the California Supreme Court in San Francisco wrongly substituted their own narrow views for the opinion of over 4 million California voters. Fortunately, voters will be able to correct that mistake in November and restore the definition of marriage to our constitution.”

“We look forward to working with Senator McCain and many other elected leaders to accomplish this. We hope that U.S Senator Barack Obama will join Senator McCain in endorsing the initiative, and would welcome his support as well.”

Romer, Governor of Colorado, et al. v. Evans et al. (94-1039), 517 U.S. 620 (1996).

2008-09-10T21:15:00.000-07:00

Justice Scalia , with whom The Chief Justice and Justice Thomas join, dissenting.

The Court has mistaken a Kulturkampf for a fit of spite. The constitutional amendment before us here is not the manifestation of a “`bare . . . desire to harm'” homosexuals, ante, at 13, but is rather a modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through use of the laws. That objective, and the means chosen to achieve it, are not only unimpeachable under any constitutional doctrine hitherto pronounced (hence the opinion's heavy reliance upon principles of righteousness rather than judicial holdings); they have been specifically approved by the Congress of the United States and by this Court.

In holding that homosexuality cannot be singled out for disfavorable treatment, the Court contradicts a decision, unchallenged here, pronounced only 10 years ago, see Bowers v. Hardwick, 478 U.S. 186 (1986), and places the prestige of this institution behind the proposition that opposition to homosexuality is as reprehensible as racial or religious bias. Whether it is or not is precisely the cultural debate that gave rise to the Colorado constitutional amendment (and to the preferential laws against which the amendment was directed). Since the Constitution of the United States says nothing about this subject, it is left to be resolved by normal democratic means, including the democratic adoption of provisions in state constitutions. This Court has no business imposing upon all Americans the resolution favored by the elite class from which the Members of this institution are selected, pronouncing that "animosity" toward homosexuality, ante, at 13, is evil. I vigorously dissent.

Let me first discuss Part II of the Court's opinion, its longest section, which is devoted to rejecting the State's arguments that Amendment 2 "puts gays and lesbians in the same position as all other persons," and "does no more than deny homosexuals special rights," ante, at 4. The Court concludes that this reading of Amendment 2's language is "implausible" under the "authoritative construction" given Amendment 2 by the Supreme Court of Colorado. Ibid.
In reaching this conclusion, the Court considers it unnecessary to decide the validity of the State's argument that Amendment 2 does not deprive homosexuals of the "protection [afforded by] general laws and policies that prohibit arbitrary discrimination in governmental and private settings." Ante, at 8. I agree that we need not resolve that dispute, because the Supreme Court of Colorado has resolved it for us. In Evans v. Romer, 882 P. 2d 1335 (1994), the Colorado court stated:

"[I]t is significant to note that Colorado law currently proscribes discrimination against persons who are not suspect classes, including discrimination based on age, §24-34-402(1)(a), 10A C. R. S. (1994 Supp.); marital or family status, §24-34-502(1)(a), 10A C. R. S. (1994 Supp.); veterans' status, §28-3-506, 11B C. R. S. (1989); and for any legal, off duty conduct such as smoking tobacco, §24-34-402.5, 10 AC. R. S. (1994 Supp.). Of course Amendment 2 is not intended to have any effect on this legislation, but seeks only to prevent the adoption of anti discrimination laws intended to protect gays, lesbians, and bisexuals." Id., at 1346, n. 9 (emphasis added).
The Court utterly fails to distinguish this portion of the Colorado court's opinion. Colorado Rev. Stat. §24-34-402.5 (Supp. 1995), which this passage authoritatively declares not to be affected by Amendment 2, was respondents' primary example of a generally applicable law whose protections would be unavailable to homosexuals under Amendment 2. See Brief for Respondents Evans et al. 11-12. The clear import of the Colorado court's conclusion that it is not affected is that "general laws and policies that prohibit arbitrary discrimination" would continue to prohibit discrimination on the basis of homosexual conduct as well. This analysis, which is fully in accord with (indeed, follows inescapably from) the text of the constitutional provision, lays to rest such horribles, raised in the course of oral argument, as the prospect that assaults upon homosexuals could not be prosecuted. The amendment prohibits special treatment of homosexuals, and nothing more. It would not affect, for example, a requirement of state law that pensions be paid to all retiring state employees with a certain length of service; homosexual employees, as well as others, would be entitled to that benefit. But it would prevent the State or any municipality from making death benefit payments to the "life partner" of a homosexual when it does not make such payments to the long time roommate of a nonhomosexual employee. Or again, it does not affect the requirement of the State's general insurance laws that customers be afforded coverage without discrimination unrelated to anticipated risk. Thus, homosexuals could not be denied coverage, or charged a greater premium, with respect to auto collision insurance; but neither the State nor any municipality could require that distinctive health insurance risks associated with homosexuality (if there are any) be ignored.

Despite all of its hand wringing about the potential effect of Amendment 2 on general antidiscrimination laws, the Court's opinion ultimately does not dispute all this, but assumes it to be true. See ante, at 9. The only denial of equal treatment it contends homosexuals have suffered is this: They may not obtain preferential treatment without amending the state constitution. That is to say, the principle underlying the Court's opinion is that one who is accorded equal treatment under the laws, but cannot as readily as others obtain preferential treatment under the laws, has been denied equal protection of the laws. If merely stating this alleged "equal protection" violation does not suffice to refute it, our constitutional jurisprudence has achieved terminal silliness.

The central thesis of the Court's reasoning is that any group is denied equal protection when, to obtain advantage (or, presumably, to avoid disadvantage), it must have recourse to a more general and hence more difficult level of political decisionmaking than others. The world has never heard of such a principle, which is why the Court's opinion is so long on emotive utterance and so short on relevant legal citation. And it seems to me most unlikely that any multilevel democracy can function under such a principle. For whenever a disadvantage is imposed, or conferral of a benefit is prohibited, at one of the higher levels of democratic decisionmaking (i.e., by the state legislature rather than local government, or by the people at large in the state constitution rather than the legislature), the affected group has (under this theory) been denied equal protection. To take the simplest of examples, consider a state law prohibiting the award of municipal contracts to relatives of mayors or city councilmen. Once such a law is passed, the group composed of such relatives must, in order to get the benefit of city contracts, persuade the state legislature--unlike all other citizens, who need only persuade the municipality. It is ridiculous to consider this a denial of equal protection, which is why the Court's theory is unheard of.

The Court might reply that the example I have given is not a denial of equal protection only because the same "rational basis" (avoidance of corruption) which renders constitutional the substantive discrimination against relatives (i.e., the fact that they alone cannot obtain city contracts) also automatically suffices to sustain what might be called the electoral procedural discrimination against them (i.e., the fact that they must go to the state level to get this changed). This is of course a perfectly reasonable response, and would explain why "electoral procedural discrimination" has not hitherto been heard of: a law that is valid in its substance is automatically valid in its level of enactment. But the Court cannot afford to make this argument, for as I shall discuss next, there is no doubt of a rational basis for the substance of the prohibition at issue here. The Court's entire novel theory rests upon the proposition that there is something special--something that cannot be justified by normal "rational basis" analysis--in making a disadvantaged group (or a nonpreferred group) resort to a higher decisionmaking level. That proposition finds no support in law or logic.

I turn next to whether there was a legitimate rational basis for the substance of the constitutional amendment--for the prohibition of special protection for homosexuals. [n.1] It is unsurprising that the Court avoids discussion of this question, since the answer is so obviously yes. The case most relevant to the issue before us today is not even mentioned in the Court's opinion: In Bowers v. Hardwick, 478 U.S. 186 (1986), we held that the Constitution does not prohibit what virtually all States had done from the founding of the Republic until very recent years--making homosexual conduct a crime. That holding is unassailable, except by those who think that the Constitution changes to suit current fashions. But in any event it is a given in the present case: Respondents' briefs did not urge overruling Bowers, and at oral argument respondents' counsel expressly disavowed any intent to seek such overruling, Tr. of Oral Arg. 53. If it is constitutionally permissible for a State to make homosexual conduct criminal, surely it is constitutionally permissible for a State to enact other laws merely disfavoring homosexual conduct. (As the Court of Appeals for the District of Columbia Circuit has aptly put it: "If the Court [in Bowers] was unwilling to object to state laws that criminalize the behavior that defines the class, it is hardly open . . . to conclude that state sponsored discrimination against the class is invidious. After all, there can hardly be more palpable discrimination against a class than making the conduct that defines the class criminal." Padula v. Webster, 822 F. 2d 97, 103 (1987).) And a fortiori (With Yet Stronger Reason) it is constitutionally permissible for a State to adopt a provision not even disfavoring homosexual conduct, but merely prohibiting all levels of state government from bestowing special protections upon homosexual conduct.

Respondents (who, unlike the Court, cannot afford the luxury of ignoring inconvenient precedent) counter Bowers with the argument that a greater includes the lesser rationale cannot justify Amendment 2's application to individuals who do not engage in homosexual acts, but are merely of homosexual "orientation." Some courts of appeals have concluded that, with respect to laws of this sort at least, that is a distinction without a difference. See Equality Foundation of Greater Cincinnati, Inc. v. Cincinnati, 54 F. 3d 261, 267 (CA 6 1995) ("[F]or purposes of these proceedings, it is virtually impossible to distinguish or separate individuals of a particular orientation which predisposes them toward a particular sexual conduct from those who actually engage in that particular type of sexual conduct"); Steffan v. Perry, 41 F. 3d 677, 689-690 (CADC 1994). The Supreme Court of Colorado itself appears to be of this view. See 882 P. 2d, at 1349-1350 ("Amendment 2 targets this class of persons based on four characteristics: sexual orientation; conduct; practices; and relationships. Each characteristic provides a potentially different way of identifying that class of persons who are gay, lesbian, or bisexual. These four characteristics are not truly severable from one another because each provides nothing more than a different way of identifying the same class of persons") (emphasis added).

But assuming that, in Amendment 2, a person of homosexual "orientation" is someone who does not engage in homosexual conduct but merely has a tendency or desire to do so, Bowers still suffices to establish a rational basis for the provision. If it is rational to criminalize the conduct, surely it is rational to deny special favor and protection to those with a self avowed tendency or desire to engage in the conduct. Indeed, where criminal sanctions are not involved, homosexual-orientation" is an acceptable stand in for homosexual conduct. A State "does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect," Dandridge v. Williams, 397 U.S. 471, 485 (1970). Just as a policy barring the hiring of methadone users as transit employees does not violate equal protection simply because some methadone users pose no threat to passenger safety, see New York City Transit Authority v. Beazer, 440 U.S. 568 (1979), and just as a mandatory retirement age of 50 for police officers does not violate equal protection even though it prematurely ends the careers of many policemen over 50 who still have the capacity to do the job, see Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307 (1976) (per curiam), Amendment 2 is not constitutionally invalid simply because it could have been drawn more precisely so as to withdraw special antidiscrimination protections only from those of homosexual "orientation" who actually engage in homosexual conduct. As Justice Kennedy wrote, when he was on the Court of Appeals, in a case involving discharge of homosexuals from the Navy: "Nearly any statute which classifies people may be irrational as applied in particular cases. Discharge of the particular plaintiffs before us would be rational, under minimal scrutiny, not because their particular cases present the dangers which justify Navy policy, but instead because the general policy of discharging all homosexuals is rational." Beller v. Middendorf, 632 F. 2d 788, 808-809, n. 20 (CA9 1980) (citation omitted). See also Ben Shalom v. Marsh, 881 F. 2d 454, 464 (CA7 1989), cert. denied, 494 U.S. 1004 (1990).

Moreover, even if the provision regarding homosexual "orientation" were invalid, respondents' challenge to Amendment 2--which is a facial challenge--must fail. "A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid." United States v. Salerno, 481 U.S. 739, 745 (1987). It would not be enough for respondents to establish (if they could) that Amendment 2 is unconstitutional as applied to those of homosexual "orientation"; since, under Bowers, Amendment 2 is unquestionably constitutional as applied to those who engage in homosexual conduct, the facial challenge cannot succeed. Some individuals of homosexual "orientation" who do not engage in homosexual acts might successfully bring an as applied challenge to Amendment 2, but so far as the record indicates, none of the respondents is such a person. See App. 4-5 (complaint describing each of the individual respondents as either "a gay man" or "a lesbian"). [n.2]

The foregoing suffices to establish what the Court's failure to cite any case remotely in point would lead one to suspect: No principle set forth in the Constitution, nor even any imagined by this Court in the past 200 years, prohibits what Colorado has done here. But the case for Colorado is much stronger than that. What it has done is not only unprohibited, but eminently reasonable, with close, congressionally approved precedent in earlier constitutional practice.
First, as to its eminent reasonableness. The Court's opinion contains grim, disapproving hints that Coloradans have been guilty of "animus" or "animosity" toward homosexuality, as though that has been established as Unamerican. Of course it is our moral heritage that one should not hate any human being or class of human beings. But I had thought that one could consider certain conduct reprehensible--murder, for example, or polygamy, or cruelty to animals--and could exhibit even "animus" toward such conduct. Surely that is the only sort of "animus" at issue here: moral disapproval of homosexual conduct, the same sort of moral disapproval that produced the centuries old criminal laws that we held constitutional in Bowers. The Colorado amendment does not, to speak entirely precisely, prohibit giving favored status to people who are homosexuals; they can be favored for many reasons--for example, because they are senior citizens or members of racial minorities. But it prohibits giving them favored status because of their homosexual conduct--that is, it prohibits favored status for homosexuality.

But though Coloradans are, as I say, entitled to be hostile toward homosexual conduct, the fact is that the degree of hostility reflected by Amendment 2 is the smallest conceivable. The Court's portrayal of Coloradans as a society fallen victim to pointless, hate filled "gay bashing" is so false as to be comical. Colorado not only is one of the 25 States that have repealed their antisodomy laws, but was among the first to do so. See 1971 Colo. Sess. Laws, ch. 121, §1. But the society that eliminates criminal punishment for homosexual acts does not necessarily abandon the view that homosexuality is morally wrong and socially harmful; often, abolition simply reflects the view that enforcement of such criminal laws involves unseemly intrusion into the intimate lives of citizens. Cf. Brief for Lambda Legal Defense and Education Fund, Inc., et al. as Amici Curiae in Bowers v. Hardwick, O. T. 1985, No. 85-140, p. 25, n. 21 (antisodomy statutes are "unenforceable by any but the most offensive snooping and wasteful allocation of law enforcement resources"); Kadish, The Crisis of Overcriminalization, 374 The Annals of the American Academy of Political and Social Science 157, 161 (1967) ("To obtain evidence [in sodomy cases], police are obliged to resort to behavior which tends to degrade and demean both themselves personally and law enforcement as an institution").

There is a problem, however, which arises when criminal sanction of homosexuality is eliminated but moral and social disapprobation of homosexuality is meant to be retained. The Court cannot be unaware of that problem; it is evident in many cities of the country, and occasionally bubbles to the surface of the news, in heated political disputes over such matters as the introduction into local schools of books teaching that homosexuality is an optional and fully acceptable "alternate life style." The problem (a problem, that is, for those who wish to retain social disapprobation of homosexuality) is that, because those who engage in homosexual conduct tend to reside in disproportionate numbers in certain communities, see Record, Exh. MMM, have high disposable income, see ibid.; App. 254 (affidavit of Prof. James Hunter), and of course care about homosexual rights issues much more ardently than the public at large, they possess political power much greater than their numbers, both locally and statewide. Quite understandably, they devote this political power to achieving not merely a grudging social toleration, but full social acceptance, of homosexuality. See, e.g., Jacobs, The Rhetorical Construction of Rights: The Case of the Gay Rights Movement, 1969-1991, 72 Neb. L. Rev. 723, 724 (1993) ("[T]he task of gay rights proponents is to move the center of public discourse along a continuum from the rhetoric of disapprobation, to rhetoric of tolerance, and finally to affirmation").

By the time Coloradans were asked to vote on Amendment 2, their exposure to homosexuals' quest for social endorsement was not limited to newspaper accounts of happenings in places such as New York, Los Angeles, San Francisco, and Key West. Three Colorado cities-- Aspen, Boulder, and Denver--had enacted ordinances that listed "sexual orientation" as an impermissible ground for discrimination, equating the moral disapproval of homosexual conduct with racial and religious bigotry. See Aspen Municipal Code §13-98 (1977); Boulder Rev. Municipal Code §§12-1-1 to 12-1-11 (1987); Denver Rev. Municipal Code, Art. IV §§28-91 to 28-116 (1991). The phenomenon had even appeared statewide: the Governor of Colorado had signed an executive order pronouncing that "in the State of Colorado we recognize the diversity in our pluralistic society and strive to bring an end to discrimination in any form," and directing state agency heads to "ensure non discrimination" in hiring and promotion based on, among other things, "sexual orientation." Executive Order No. D0035 (Dec. 10, 1990). I do not mean to be critical of these legislative successes; homosexuals are as entitled to use the legal system for reinforcement of their moral sentiments as are the rest of society. But they are subject to being countered by lawful, democratic countermeasures as well.

That is where Amendment 2 came in. It sought to counter both the geographic concentration and the disproportionate political power of homosexuals by (1) resolving the controversy at the statewide level, and (2) making the election a single issue contest for both sides. It put directly, to all the citizens of the State, the question: Should homosexuality be given special protection? They answered no. The Court today asserts that this most democratic of procedures is unconstitutional. Lacking any cases to establish that facially absurd proposition, it simply asserts that it must be unconstitutional, because it has never happened before.

"[Amendment 2] identifies persons by a single trait and then denies them protection across the board. The resulting disqualification of a class of persons from the right to seek specific protection from the law is unprecedented in our jurisprudence. The absence of precedent for Amendment 2 is itself instructive . . . .

"It is not within our constitutional tradition to enact laws of this sort. Central both to the idea of the rule of law and to our own Constitution's guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance." Ante, at 11-12.

As I have noted above, this is proved false every time a state law prohibiting or disfavoring certain conduct is passed, because such a law prevents the adversely affected group--whether drug addicts, or smokers, or gun owners, or motorcyclists--from changing the policy thus established in "each of [the] parts" of the State. What the Court says is even demonstrably false at the constitutional level. The Eighteenth Amendment to the Federal Constitution, for example, deprived those who drank alcohol not only of the power to alter the policy of prohibition locally or through state legislation, but even of the power to alter it through state constitutional amendment or federal legislation. The Establishment Clause of the First Amendment prevents theocrats from having their way by converting their fellow citizens at the local, state, or federal statutory level; as does the Republican Form of Government Clause prevent monarchists.

But there is a much closer analogy, one that involves precisely the effort by the majority of citizens to preserve its view of sexual morality statewide, against the efforts of a geographically concentrated and politically powerful minority to undermine it. The constitutions of the States of Arizona, Idaho, New Mexico, Oklahoma, and Utah to this day contain provisions stating that polygamy is "forever prohibited." See Ariz. Const., Art. XX, par. 2; Idaho Const., Art. I, §4; N. M. Const., Art. XXI, §1; Okla. Const., Art. I, §2; Utah Const., Art. III, §1. Polygamists, and those who have a polygamous "orientation," have been "singled out" by these provisions for much more severe treatment than merely denial of favored status; and that treatment can only be changed by achieving amendment of the state constitutions. The Court's disposition today suggests that these provisions are unconstitutional, and that polygamy must be permitted in these States on a state legislated, or perhaps even local option, basis--unless, of course, polygamists for some reason have fewer constitutional rights than homosexuals.
The United States Congress, by the way, required the inclusion of these anti polygamy provisions in the constitutions of Arizona, New Mexico, Oklahoma, and Utah, as a condition of their admission to statehood. See Arizona Enabling Act, 36 Stat. 569; New Mexico Enabling Act, 36 Stat. 558; Oklahoma Enabling Act, 34 Stat. 269; Utah Enabling Act, 28 Stat. 108. (For Arizona, New Mexico, and Utah, moreover, the Enabling Acts required that the anti polygamy provisions be "irrevocable without the consent of the United States and the people of said State"--so that not only were "each of [the] parts" of these States not "open on impartial terms" to polygamists, but even the States as a whole were not; polygamists would have to persuade the whole country to their way of thinking.) Idaho adopted the constitutional provision on its own, but the 51st Congress, which admitted Idaho into the Union, found its constitution to be "republican in form and . . . in conformity with the Constitution of the United States." Act of Admission of Idaho, 26 Stat. 215 (emphasis added). Thus, this "singling out" of the sexual practices of a single group for statewide, democratic vote--so utterly alien to our constitutional system, the Court would have us believe--has not only happened, but has received the explicit approval of the United States Congress.

I cannot say that this Court has explicitly approved any of these state constitutional provisions; but it has approved a territorial statutory provision that went even further, depriving polygamists of the ability even to achieve a constitutional amendment, by depriving them of the power to vote. In Davis v. Beason, 133 U.S. 333 (1890), Justice Field wrote for a unanimous Court:

"In our judgment, §501 of the Revised Statutes of Idaho Territory, which provides that `no person . . . who is a bigamist or polygamist or who teaches, advises, counsels, or encourages any person or persons to become bigamists or polygamists, or to commit any other crime defined by law, or to enter into what is known as plural or celestial marriage, or who is a member of any order, organization or association which teaches, advises, counsels, or encourages its members or devotees or any other persons to commit the crime of bigamy or polygamy, or any other crime defined by law . . . is permitted to vote at any election, or to hold any position or office of honor, trust, or profit within this Territory,' is not open to any constitutional or legal objection." Id., at 346-347 (emphasis added).

To the extent, if any, that this opinion permits the imposition of adverse consequences upon mere abstract advocacy of polygamy, it has of course been overruled by later cases. See Brandenburg v. Ohio, 395 U.S. 444 (1969) (per curiam). But the proposition that polygamy can be criminalized, and those engaging in that crime deprived of the vote, remains good law. See Richardson v. Ramirez, 418 U.S. 24, 53 (1974). Beason rejected the argument that "such discrimination is a denial of the equal protection of the laws." Brief for Appellant in Davis v. Beason, O. T. 1889, No. 1261, p. 41. Among the Justices joining in that rejection were the two whose views in other cases the Court today treats as equal protection lodestars--Justice Harlan, who was to proclaim in Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (dissenting opinion), that the Constitution "neither knows nor tolerates classes among citizens," quoted ante, at 1, and Justice Bradley, who had earlier declared that "class legislation . . . [is] obnoxious to the prohibitions of the Fourteenth Amendment," Civil Rights Cases, 109 U.S. 3, 24 (1883), quoted ante, at 14. [n.3]

This Court cited Beason with approval as recently as 1993, in an opinion authored by the same Justice who writes for the Court today. That opinion said: "[A]dverse impact will not always lead to a finding of impermissible targeting. For example, a social harm may have been a legitimate concern of government for reasons quite apart from discrimination. . . . See, e.g., . . . Davis v. Beason, 133 U.S. 333 (1890)." Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 535 (1993). It remains to be explained how §501 of the Idaho Revised Statutes was not an "impermissible targeting" of polygamists, but (the much more mild) Amendment 2 is an "impermissible targeting" of homosexuals. Has the Court concluded that the perceived social harm of polygamy is a "legitimate concern of government," and the perceived social harm of homosexuality is not?

I strongly suspect that the answer to the last question is yes, which leads me to the last point I wish to make: The Court today, announcing that Amendment 2 "defies . . . conventional [constitutional] inquiry," ante, at 10, and "confounds [the] normal process of judicial review," ante, at 11, employs a constitutional theory heretofore unknown to frustrate Colorado's reasonable effort to preserve traditional American moral values. The Court's stern disapproval of "animosity" towards homosexuality might be compared with what an earlier Court (including the revered Justices Harlan and Bradley) said in Murphy v. Ramsey, 114 U.S. 15 (1885), rejecting a constitutional challenge to a United States statute that denied the franchise in federal territories to those who engaged in polygamous cohabitation:

"[C]ertainly no legislation can be supposed more wholesome and necessary in the founding of a free, self governing commonwealth, fit to take rank as one of the co ordinate States of the Union, than that which seeks to establish it on the basis of the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization; the best guaranty of that reverent morality which is the source of all beneficent progress in social and political improvement." Id., at 45.

I would not myself indulge in such official praise for heterosexual monogamy, because I think it no business of the courts (as opposed to the political branches) to take sides in this culture war.
But the Court today has done so, not only by inventing a novel and extravagant constitutional doctrine to take the victory away from traditional forces, but even by verbally disparaging as bigotry adherence to traditional attitudes. To suggest, for example, that this constitutional amendment springs from nothing more than " `a bare . . . desire to harm a politically unpopular group,' " ante, at 13, quoting Department of Agriculture v. Moreno, 413 U.S. 528, 534 (1973), is nothing short of insulting. (It is also nothing short of preposterous to call "politically unpopular" a group which enjoys enormous influence in American media and politics, and which, as the trial court here noted, though composing no more than 4% of the population had the support of 46% of the voters on Amendment 2, see App. to Pet. for Cert. C-18.)

When the Court takes sides in the culture wars, it tends to be with the knights rather than the villains--and more specifically with the Templars, reflecting the views and values of the lawyer class from which the Court's Members are drawn. How that class feels about homosexuality will be evident to anyone who wishes to interview job applicants at virtually any of the Nation's law schools. The interviewer may refuse to offer a job because the applicant is a Republican; because he is an adulterer; because he went to the wrong prep school or belongs to the wrong country club; because he eats snails; because he is a womanizer; because she wears real animal fur; or even because he hates the Chicago Cubs. But if the interviewer should wish not to be an associate or partner of an applicant because he disapproves of the applicant's homosexuality, then he will have violated the pledge which the Association of American Law Schools requires all its member schools to exact from job interviewers: "assurance of the employer's willingness" to hire homosexuals. Bylaws of the Association of American Law Schools, Inc. §6-4(b); Executive Committee Regulations of the Association of American Law Schools §6.19, in 1995 Handbook, Association of American Law Schools. This law school view of what "prejudices" must be stamped out may be contrasted with the more plebeian attitudes that apparently still prevail in the United States Congress, which has been unresponsive to repeated attempts to extend to homosexuals the protections of federal civil rights laws, see, e.g., Employment Non Discrimination Act of 1994, S. 2238, 103d Cong., 2d Sess. (1994); Civil Rights Amendments of 1975, H. R. 5452, 94th Cong., 1st Sess. (1975), and which took the pains to exclude them specifically from the Americans With Disabilities Act of 1990, see 42 U.S.C. § 12211(a) (1988 ed., Supp. V).

* * *Today's opinion has no foundation in American constitutional law, and barely pretends to. The people of Colorado have adopted an entirely reasonable provision which does not even disfavor homosexuals in any substantive sense, but merely denies them preferential treatment. Amendment 2 is designed to prevent piecemeal deterioration of the sexual morality favored by a majority of Coloradans, and is not only an appropriate means to that legitimate end, but a means that Americans have employed before. Striking it down is an act, not of judicial judgment, but of political will. I dissent.

Notes
1 The Court evidently agrees that "rational basis"--the normal test for compliance with the Equal Protection Clause--is the governing standard. The trial court rejected respondents' argument that homosexuals constitute a "suspect" or "quasi suspect" class, and respondents elected not to appeal that ruling to the Supreme Court of Colorado. See Evans v. Romer, 882 P. 2d 1335, 1341, n. 3 (1994). And the Court implicitly rejects the Supreme Court of Colorado's holding, see Evans v. Romer, 854 P. 2d 1270, 1282 (1993), that Amendment 2 infringes upon a "fundamental right" of "independently identifiable class[es]" to "participate equally in the political process." Ante, at 4.

2 The Supreme Court of Colorado stated: "We hold that the portions of Amendment 2 that would remain if only the provision concerning sexual orientation were stricken are not autonomous and thus, not severable," 882 P. 2d, at 1349. That statement was premised, however, on the proposition that "[the] four characteristics [described in the Amendment--sexual orientation, conduct, practices, and relationships] are not truly severable from one another because each provides nothing more than a different way of identifying the same class of persons." Id., at 1349-1350 (emphasis added). As I have discussed above, if that premise is true--if the entire class affected by the Amendment takes part in homosexual conduct, practices and relationships--Bowers alone suffices to answer all constitutional objections. Separate consideration of persons of homosexual "orientation" is necessary only if one believes (as the Supreme Court of Colorado did not) that that is a distinct class.

3 The Court labors mightily to get around Beason, see ante, at 12-13, but cannot escape the central fact that this Court found the statute at issue--which went much further than Amendment 2, denying polygamists not merely special treatment but the right to vote--"not open to any constitutional or legal objection," rejecting the appellant's argument (much like the argument of respondents today) that the statute impermissibly "single[d] him out," Brief for Appellant in Davis v. Beason, O. T. 1889, No. 1261, p. 41. The Court adopts my conclusions that (a) insofar as Beason permits the imposition of adverse consequences based upon mere advocacy, it has been overruled by subsequent cases, and (b) insofar as Beason holds that convicted felons may be denied the right to vote, it remains good law. To these conclusions, it adds something new: the claim that "[t]o the extent [Beason] held that the groups designated in the statute may be deprived of the right to vote because of their status, its ruling could not stand without surviving strict scrutiny, a most doubtful outcome." Ante, at 12-13. But if that is so, it is only because we have declared the right to vote to be a "fundamental political right," see, e.g., Dunn v. Blumstein, 405 U.S. 330, 336 (1972), deprivation of which triggers strict scrutiny. Amendment 2, of course, does not deny the fundamental right to vote, and the Court rejects the Colorado court's view that there exists a fundamental right to participate in the political process. Strict scrutiny is thus not in play here. See ante, at 10. Finally, the Court's suggestion that §501 of the Revised Statutes of Idaho, and Amendment 2, deny rights on account of "status" (rather than conduct) opens up a broader debate involving the significance of Bowers to this case, a debate which the Court is otherwise unwilling to join, see supra, at 6-9.

BOWERS v. HARDWICK, 478 U.S. 186 (1986) UNITED STATES SUPREME COURT

2008-09-10T20:57:00.000-07:00

This case does not require a judgment on whether laws against sodomy between consenting adults in general, or between homosexuals in particular, are wise or desirable. It raises no question about the right or propriety of state legislative decisions to repeal their laws that criminalize homosexual sodomy, or of state-court decisions invalidating those laws on state constitutional grounds. The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of the many States that still make such conduct illegal and have done so for a very long time. The case also calls for some judgment about the limits of the Court's role in carrying out its constitutional mandate.

We first register our disagreement with the Court of Appeals and with respondent that the Court's prior cases have construed the Constitution to confer a right of privacy that extends to homosexual sodomy and for all intents and purposes have decided this case. The reach of this line of cases was sketched in Carey v. Population Services International, 431 U.S. 678, 685 (1977). Pierce v. Society of Sisters, 268 U.S. 510 (1925), and Meyer v. Nebraska, 262 U.S. 390 (1923), were described as dealing with child rearing and education; Prince v. Massachusetts, 321 U.S. 158 (1944), with family relationships; Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942), with procreation; Loving v. Virginia, 388 U.S. 1 (1967), with marriage; Griswold v. Connecticut, supra, and Eisenstadt v. Baird, supra, with contraception; and Roe v. Wade, 410 U.S. 113 (1973), with abortion. The latter three cases were interpreted as construing the Due Process Clause of the Fourteenth Amendment to confer a fundamental individual right to decide whether or not to beget or bear a child. Carey v. Population Services International, supra, at 688-689.

Accepting the decisions in these cases and the above description of them, we think it evident that none of the rights announced in those cases bears any resemblance to the [478 U.S. 186, 191] claimed constitutional right of homosexuals to engage in acts of sodomy that is asserted in this case. No connection between family, marriage, or procreation on the one hand and homosexual activity on the other has been demonstrated, either by the Court of Appeals or by respondent. Moreover, any claim that these cases nevertheless stand for the proposition that any kind of private sexual conduct between consenting adults is constitutionally insulated from state proscription is unsupportable. Indeed, the Court's opinion in Carey twice asserted that the privacy right, which the Griswold line of cases found to be one of the protections provided by the Due Process Clause, did not reach so far. 431 U.S., at 688 , n. 5, 694, n. 17.

Precedent aside, however, respondent would have us announce, as the Court of Appeals did, a fundamental right to engage in homosexual sodomy. This we are quite unwilling to do. It is true that despite the language of the Due Process Clauses of the Fifth and Fourteenth Amendments, which appears to focus only on the processes by which life, liberty, or property is taken, the cases are legion in which those Clauses have been interpreted to have substantive content, subsuming rights that to a great extent are immune from federal or state regulation or proscription. Among such cases are those recognizing rights that have little or no textual support in the constitutional language. Meyer, Prince, and Pierce fall in this category, as do the privacy cases from Griswold to Carey.

Striving to assure itself and the public that announcing rights not readily identifiable in the Constitution's text involves much more than the imposition of the Justices' own choice of values on the States and the Federal Government, the Court has sought to identify the nature of the rights qualifying for heightened judicial protection. In Palko v. Connecticut, 302 U.S. 319, 325 , 326 (1937), it was said that this category includes those fundamental liberties that are "implicit in the concept of ordered liberty," such that "neither [478 U.S. 186, 192] liberty nor justice would exist if [they] were sacrificed." A different description of fundamental liberties appeared in Moore v. East Cleveland, 431 U.S. 494, 503 (1977) (opinion of POWELL, J.), where they are characterized as those liberties that are "deeply rooted in this Nation's history and tradition." Id., at 503 (POWELL, J.). See also Griswold v. Connecticut, 381 U.S., at 506 .

It is obvious to us that neither of these formulations would extend a fundamental right to homosexuals to engage in acts of consensual sodomy. Proscriptions against that conduct have ancient roots. See generally Survey on the Constitutional Right to Privacy in the Context of Homosexual Activity, 40 U. Miami L. Rev. 521, 525 (1986). Sodomy was a criminal offense at common law and was forbidden by the laws of the original 13 States when they ratified the Bill of Rights. 5 In 1868, when the Fourteenth Amendment was [478 U.S. 186, 193] ratified, all but 5 of the 37 States in the Union had criminal sodomy laws. 6 In fact, until 1961, 7 all 50 States outlawed sodomy, and today, 24 States and the District of Columbia [478 U.S. 186, 194] continue to provide criminal penalties for sodomy performed in private and between consenting adults. See Survey, U. Miami L. Rev., supra, at 524, n. 9. Against this background, to claim that a right to engage in such conduct is "deeply rooted in this Nation's history and tradition" or "implicit in the concept of ordered liberty" is, at best, facetious.

Nor are we inclined to take a more expansive view of our authority to discover new fundamental rights imbedded in the Due Process Clause. The Court is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution. That this is so was painfully demonstrated by the face-off between the Executive and the Court in the 1930's, which resulted in the repudiation [478 U.S. 186, 195] of much of the substantive gloss that the Court had placed on the Due Process Clauses of the Fifth and Fourteenth Amendments. There should be, therefore, great resistance to expand the substantive reach of those Clauses, particularly if it requires redefining the category of rights deemed to be fundamental. Otherwise, the Judiciary necessarily takes to itself further authority to govern the country without express constitutional authority. The claimed right pressed on us today falls for short of overcoming this resistance.

Respondent, however, asserts that the result should be different where the homosexual conduct occurs in the privacy of the home. He relies on Stanley v. Georgia, 394 U.S. 557 (1969), where the Court held that the First Amendment prevents conviction for possessing and reading obscene material in the privacy of one's home: "If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his house, what books he may read or what films he may watch." Id., at 565.

Stanley did protect conduct that would not have been protected outside the home, and it partially prevented the enforcement of state obscenity laws; but the decision was firmly grounded in the First Amendment. The right pressed upon us here has no similar support in the text of the Constitution, and it does not qualify for recognition under the prevailing principles for construing the Fourteenth Amendment. Its limits are also difficult to discern. Plainly enough, otherwise illegal conduct is not always immunized whenever it occurs in the home. Victimless crimes, such as the possession and use of illegal drugs, do not escape the law where they are committed at home. Stanley itself recognized that its holding offered no protection for the possession in the home of drugs, firearms, or stolen goods. Id., at 568, n. 11. And if respondent's submission is limited to the voluntary sexual conduct between consenting adults, it would be difficult, except by fiat, to limit the claimed right to homosexual conduct [478 U.S. 186, 196] while leaving exposed to prosecution adultery, incest, and other sexual crimes even though they are committed in the home. We are unwilling to start down that road.

Even if the conduct at issue here is not a fundamental right, respondent asserts that there must be a rational basis for the law and that there is none in this case other than the presumed belief of a majority of the electorate in Georgia that homosexual sodomy is immoral and unacceptable. This is said to be an inadequate rationale to support the law. The law, however, is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed. Even respondent makes no such claim, but insists that majority sentiments about the morality of homosexuality should be declared inadequate. We do not agree, and are unpersuaded that the sodomy laws of some 25 States should be invalidated on this basis.

Same Sex Marriage and Natural Law

2008-09-10T20:46:00.000-07:00

Why then is [same sex marriage] against the natural law? First of all, because man is a species-being and, as we have said, the species to which he belongs—the species that defines his nature—is both rational and social. Men cannot live at all—much less live well—except by the mutual protection and mutual support of other human beings. Morality refers to those rules that mankind has learned, both from reason and experience, are necessary for surviving and prospering. The inclination of many men—what we might call the inclination of their lower nature—to take their sex where they find it (whether their partners consent to it or not) and ignore the consequences, must be subordinated to their higher nature, which includes the interest of society (and the interest of nature in the species). For in no other species are the young so helplessly dependent for so long. Hence the importance, even for survival, of both the moral and civil laws governing the institution of marriage and of the family. We know that the relaxation of these laws leads to disorder, disease, and death, no less surely in the most advanced cultures of modernity than in the most primitive. But the good of the family is not that only of self-preservation and survival, but of the higher good—the happiness—of all its members, including those whose original horizon may not have extended beyond immediate gratification.

Harry Jaffa- Homosexuality and Natural Law [emphasis added]

Sexual Orientation and The Disintegration of the American Family

2008-09-10T18:52:00.000-07:00

The dissolution of the family is at the root of nearly all the social problems afflicting contemporary American society. The high rate of divorce is making emotional cripples out of children at all levels of society. And the children of divorce become divorced themselves at much higher rates than others. Crime, drug abuse, alcoholism, mental illness, venereal disease, low educational achievement, lack of job-related skills, inability to function well on jobs, all of these things—and many more—can have their causes traced to the disintegration of the traditional family. And at the root of the disability of the contemporary American family is the ethic that says that sexual preference is, and should be, only a matter of personal preference and personal choice. The traditional family, the embodiment and expression of "the laws of nature and of nature's God," as the foundation of a free society, has become merely one of many "alternative life-styles." But then a free society, as distinguished from a despotic one, itself becomes merely one of many "alternative lifestyles." A free people who succumbs to such a teaching cannot long endure. Those who choose [homosexuality and gay marriage] are already choosing slavery, because whoever is an indiscriminate slave to his own unreasoning passions will sooner or later become a slave to the passions of others.

Homosexuality and Natural Law
By Harry V. Jaffa 1989