‘Unconstitutional’?
According to Vaughn Walker, it was “unconstitutional” for Californians to vote to declare homosexual marriage illegal.
Why unconstitutional? In his ruling on Perry v. Schwarzenegger, Judge Walker criticized the moral reasoning behind Proposition 8, by which voters tried to prevent the institution of marriage from being legally redefined from what it has been for the whole of human history.
“The evidence shows conclusively that moral and religious views form the only basis for a belief that same-sex couples are different from opposite-sex couples,” Walker wrote. This, he concluded, is an irrational basis for legislating against same-sex unions.
Religion and morality, in other words, must have absolutely no bearing on the law in these modern, secular United States.
This is the latest and most prominent example of an extraordinarily dangerous trend in American jurisprudence—and society in general: the effort to systematically, completely scrub God from public life.
Where Does Law Come From?
God is the Author of morality and law. “There is one lawgiver, who is able to save and to destroy,” explained the Apostle James.
Biblical history shows God instructing man at various times in the particulars of His law. Just as the manufacturer of a sophisticated product includes an instruction manual, so the Creator of mankind provided detailed instructions on how to make life work—specifically, how to cultivate harmony between God and man, and with fellow man. He did not force man to work out on his own that murder, theft and deceit are wrong. He created sex, marriage and family, and then safeguarded them by forbidding all extramarital sex. He spelled these laws out, and later gave specific instructions on what to do to enforce those laws.
God is love, and His law represents His love (1 John 4:8; 5:3). His law is spiritual; it is holy, just and good (Romans 7:14, 12). Even the individual statutes and judgments enumerated in the Old Testament—though many no longer apply in letter today—illuminate the eternal principles of that law. As King David wrote, “The law of the Lord is perfect, converting the soul: … The statutes of the Lord are right, rejoicing the heart: the commandment of the Lord is pure, enlightening the eyes. … [T]he judgments of the Lord are true and righteous altogether” (Psalm 19:7-9).
The fact is, the degree to which human beings obey the eternal spiritual law of God—whether or not they realize or understand it—will determine their success in their relationships with God and fellow man.
However, our rejection of that revealed knowledge, and our selfish desire to pursue the course of action that seems right to us, is as old as humanity itself. The first two people chose to discard God’s instructions and believe the deceitful serpent who seduced them with promises of the glittering potential of self-conceived wisdom.
That same serpent is at work in the hearts of men today (Ephesians 2:2; Revelation 12:9). As a result, Paul wrote, “[T]he mind that is set on the flesh is hostile to God; it does not submit to God’s law, indeed it cannot” (Romans 8:7, Revised Standard Version).
The notion that society would be better off if we only eliminated laws derived from “moral and religious views” vividly testifies of this carnal hatred for God’s law.
Scripture is filled with admonitions and warnings about the dangers of human reasoning cut off from God’s direction. “There is a way which seemeth right unto a man, but the end thereof are the ways of death” (Proverbs 14:12; 16:25). A society that exalts rationalism and rejects divine revelation as the foundation for its laws is writing its own epitaph.
Right to Privacy?
The legal reasoning that led to Judge Walker’s ruling in Perry v. Schwarzenegger is a revealing case study in how the human mind can justify lawlessness.
It shows contempt not only for the absolute, eternal law of God, but even for the law of the land that should guide court decision and limit judicial jurisdiction.
The ruling was built on a few ambiguous or problematic phrases that have accumulated in court opinions over the past 45 years or so. Within America’s precedent-based legal system, that shaky sequence of loaded language has been used to stretch and refashion the Fourteenth Amendment into a potent weapon with which liberal judges can force their twisted will on society.
The Fourteenth Amendment was passed in 1868 to safeguard the rights of the slaves freed after the Civil War. Part of it reads, “No state shall make or enforce any law which shall … deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws” (emphasis mine throughout).
These two clauses—the promise not to deprive anyone of “liberty … without due process of law” and that of “equal protection” for all—are the two upon which Judge Walker based his legal argument.
The road from protecting the rights of freed slaves to banning voters from prohibiting homosexual “marriage” began with a single step.
In his 2005 book Men in Black, Mark Levin traces its origins to the 1965 Griswold v. Connecticut case, in which Justice William O. Douglas found a heretofore-nonexistent “right to privacy” in the “due process” clause. To strike down a law that prohibited the sale of contraceptives, Douglas argued that it deprived married couples “liberty.” He wrote—try to follow this—that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.” That is smoke-and-mirrors phraseology. Penumbras and emanations are scientific terms without legal meaning—except as Douglas appropriated them to justify stretching the Fourteenth Amendment.
By finding a “right to privacy” in a penumbra of an emanation, Justice Douglas put his personal opinion above the law and struck a severe blow to the foundation of many other laws.
The invention of this right is a perfect example of the danger in flawed, self-justifying human reason. Essentially, the “right to privacy” as the court began to view it is a cloak for the “right” to commit crimes and to sin.
Obviously, many acts can occur in the privacy of one’s bedroom that are still illegal—rape or cooking up drugs, for example. As Justice Hugo Black wrote in his dissenting opinion in Griswold v. Connecticut, “‘Privacy’ is a broad, abstract and ambiguous concept which can easily be shrunken in meaning but which can also, on the other hand, easily be interpreted as a constitutional ban against many things other than searches and seizures. … I like my privacy as well as the next one, but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision.”
Sure enough, the Griswold v. Connecticut decision enabled secularist thinking to wedge the door open for greater influence down the road.
“Unwarranted Governmental Intrusion”
Seven years later, the issue of contraceptives and unmarried couples came up in Eisenstadt v. Baird. Here the Supreme Court used the “equal protection” clause to say that if married people could have access to birth control, then so should single people.
The majority opinion predictably expanded the “right to privacy,” saying, “If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” (The superfluous insertion of “whether to bear” a child, which had no connection to the case, proved significant the following year, 1973. In Roe v. Wade, the court relied on this thin justification to rule that the “right to privacy” included a woman’s right to abortion. Here is another example of legal language becoming a lethal weapon.)
Thus the court again exalted the justices’ personal preferences—a mere five unelected individuals—over the laws legitimately created by a state legislature elected by the people. Levin calls this a “quiet revolution against representative government.”
More fundamentally, however, it further dismantled the moral underpinnings of the law. The state’s authority to forbid certain behaviors was condescendingly dismissed as “unwarranted governmental intrusion.”
The issue of homosexuality stormed the Supreme Court in 1986, in Bowers v. Hardwick. In that case, a 5-4 majority upheld a Georgia state law against sodomy, pushing back against the forward march of the “right to privacy.” The court argued that the notion that “any kind of private sexual conduct between consenting adults is constitutionally insulated from state proscription is unsupportable.”
Not only did that ruling uphold the Constitution by respecting the power of individual states in such matters, but it also respected the legitimacy of using morality as the basis for law.
Sadly, it wouldn’t stand for long.
“The End of All Morals Legislation”
In 1996 it was again court versus state in Romer v. Evans. This case addressed the constitutionality of an amendment to Colorado’s constitution that excluded “sexual orientation” from civil rights laws banning racial and religious discrimination. The Supreme Court killed the amendment based on the “equal protection” clause.
In his dissent, Justice Antonin Scalia exposed the central fallacy in this decision: “If it is constitutionally permissible for a state to make homosexual conduct criminal [which, of course, the court had acknowledged it could only 10 years before in Bowers v. Hardwick], surely it is constitutionally permissible for a state to enact other laws merely disfavoring homosexual conduct”—and certainly to pass a provision “merely prohibiting all levels of state government from bestowing special protections upon homosexual conduct.”
So true: There was a glaring contradiction between the court’s ruling on Bowers and its ruling on Romer. But rather than judge according to precedent and in respect of its clear constitutionally prescribed limitations, the court doubled down and, in 2003, reversed its Bowers decision. In the landmark Lawrence v. Texas case, a 6-3 Supreme Court found that—lo and behold—the Constitution did in fact guarantee Americans the right to commit homosexual sodomy.
The majority held that the dissenting opinion in Bowers v. Hardwick—which said that just because something is considered immoral doesn’t make it illegal—was actually correct. Justice Anthony Kennedy, in writing the opinion, spoke of an “emerging awareness that liberty [that all-important word in the due process clause] gives substantial protection” to sexual decisions. He also brought out that the European Convention on Human Rights invalidated sodomy laws. Who needs the Constitution?
“This effectively decrees the end of all morals legislation,” lamented Justice Scalia in his dissent. “If, as the Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest,” he wrote, and all laws are subject to “rational-basis review” alone, then that undermines the foundation for “criminal laws against fornication, bigamy, adultery, adult incest, bestiality and obscenity.”
He continued, “The Supreme Court is clearly in the business of vetoing state (and federal) legislation by inventing new and increasingly more absurd justifications. It does not feel bound by the Constitution or even precedent. It is abandoning the constitutional framework that supports the moral foundation of our laws. … State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality and obscenity are likewise sustainable only in light of Bowers’ validation of laws based on moral choices. Every single one of these laws is called into question by today’s decision.”
How right he was. Today, in Perry v. Schwarzenegger, we witnessed the inevitable next step in this trend.
Not Rational
Judge Walker roundly attacked the moral argument against same-sex marriage. He argued that since “moral and religious views form the only basis for a belief that same-sex couples are different from opposite-sex couples,” then, from a legal standpoint, there is no basis for making any distinction. Opposition to same-sex marriage is simply not rational, he said—hence constitutionally impermissible.
Walker held that Proposition 8 violated the Fourteenth Amendment’s “due process” clause. Marriage is a fundamental right of Americans, he said, and homosexuals are Americans. Forget the fact that, for example, states also prohibit siblings from marrying, or parents from marrying their own children, or minors from marrying—all moral choices on the part of states. Forget that all three branches of the federal government as well as the state of California have already lawfully determined that for a state not to grant marriage to homosexuals is constitutional.
Walker also said Prop 8 violated the “equal protection” clause, which forbids sexual discrimination, by stretching the definition of sex to include sexual orientation. This is legally unprecedented, and, left unchallenged, opens the door for a great deal more litigation by homosexuals and other sexual deviants.
In Judge Walker’s mind, it is Bible-based theology—not unnatural or unlawful sexual orientation—that poses a dangerous threat to homosexuals and lesbians.
Among his “findings of fact,” for example, Judge Walker ruled, “Religious beliefs that gay and lesbian relationships are sinful or inferior to heterosexual relationships harm gays and lesbians.” To support this finding, he cited 18 examples—most of them just doctrinal explanations from religious groups denouncing homosexual behavior as unbiblical and sinful.
“[T]he evidence shows beyond debate that allowing same-sex couples to marry has at least a neutral, if not a positive, effect on the institution of marriage,” he wrote.
Thus, this single district court judge cast aside current law, ignored precedent, and exalted his own secularist morality ahead of the moral judgment of a majority of voters in the most populous state in the union.
Beyond that, he attacked religion as the basis for forming moral judgment. He increased the growing supremacy of secularism. He advanced the cause of godless rationalism, and the ruinous campaign to make fallible human reasoning the only legitimate legal authority.
Wearing the cloak of constitutionality, he raised the banner of lawlessness. In ruling Proposition 8 unconstitutional, this judge tortured the Constitution. His 136-page ruling uses the highbrow language of law to dismantle the law.
Right in Our Own Eyes
The liberal judiciary’s grandiloquent assault on the Constitution is closely linked with a broader cultural trend toward casting off restraint. The contempt for law that this decision represents is one of the most grievous plagues of our times. It infects every level of society from the child’s nursery to the most exalted halls of power.
This opinion is part of a movement to disinfect the nation’s laws of their religious underpinnings and retain only what survives rational-basis review. This will supposedly increase justice, expand freedom and strengthen the nation. But that reasoning is already doing the opposite: increasing disorder and division, enslaving people to their own lusts, and shredding the nation’s social fabric.
It’s a far cry from the way our Founding Fathers viewed constitutional law. The way President John Adams viewed it, “Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.”
America’s first president, George Washington, said during his farewell address in 1796, “Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports.”
These God-fearing men understood well that without the moral restrictions of a higher spiritual law, the many liberties afforded Americans in the Constitution would lead to anarchy—and end in destruction.
It calls to mind the darkest period in the history of ancient Israel—the period of the judges. As the nation turned its back on God and His law, it suffered curse upon nightmarish curse. Scripture uses a simple description of the moral and intellectual climate at that time—one that rings sickeningly true today: “Every man did that which was right in his own eyes” (Judges 21:25).
Quoting that verse in his 2001 article “Justice and Our ‘Evolving Constitution,’” the Trumpet’s editor in chief wrote, “This was the condition of our biblical forefathers—just before their nation collapsed and they went into slavery!”
Watch for history to repeat itself.
