Legislating Morality

Four out of the five Catholics on the United States Supreme Court apparently believe that it is a perfectly proper function of federal, state and local governments in this supposedly free country of ours to legislate morality among the populace such that conduct deemed to be philosophically moral or immoral may be rewarded or punished at the whim of the majority.

So says Justice Antonin Scalia about same sex marriage in his dissenting opinion in U.S. v. Windsor: “As I have observed before, the Constitution does not forbid the government to enforce traditional moral and sexual norms… I will not swell the U. S. Reports with restatements of that point. It is enough to say that the Constitution neither requires nor forbids our society to approve of same-sex marriage, much as it neither requires nor forbids us to approve of no-fault divorce, polygamy, or the consumption of alcohol.”

Scalia was referring in part to his earlier dissent in Lawrence v. Texas, in which he opined that he sees no constitutional violation of liberty problem whatsoever with legislators criminalizing sexual practices between wholly consenting adults in the privacy of their bedrooms, to wit: homosexual sex in that case.  

Do you think Scalia’s opinions might have anything to do with his religion? Surely it must be so.

This obviously isn’t just about morality so much as it’s about Scalia’s own particular Christian religious morality. It is crystal clear to me that if a state legislature ever saw fit to criminalize the doggy style sexual position between two consenting adults in the privacy of their bedrooms, he would have no objection upon fundamental liberty constitutional grounds.

Thankfully, at least one of the Catholics, Justice Anthony Kennedy, and four other Justices, recognize that it is a violation of liberty and equal protection of the law under the Fifth and Fourteenth Amendments of the Constitution to deny same sex married couples the same rights and benefits the government affords to heterosexual couples.

Thus, SCOTUS, by a vote of 5 to 4, struck down the federal Defense of Marriage Act (DOMA), provisions which define the term “marriage” in moral terms as limited to unions between heterosexuals and thereby deliberately treat homosexuals unequally under the provisions of thousands of federal statutes conferring benefits upon married couples.

To me this decision was a classic no brainer just like the 1954 SCOTUS decision in Brown v. Board of Education which struck down public school segregation laws as unconstitutional violations of equal protection of the laws.

Sadly, I think that if Justice Scalia and his four cohorts were on the bench then and had their way there would still be government sanctioned racial segregation in the United States of America today on the grounds that, in their misguided minds, the Constitution neither requires nor forbids our society to approve of equality for blacks.

Scalia has no problem with striking down other laws as unconstitutional when he disagrees with the moral principles involved. He, for example, would have voided Omama care as a violation of constitutional guaranteed liberty even though that law is grounded upon the ostensible moral principle that we all have an obligation to help everyone get health care insurance.

After all, the Constitution doesn’t expressly forbid or require Omama care schemes so why not leave that up the legislators too?

He’s a constitutional hypocrite, that’s why.

The fact of the matter is that attempts to legislate morality, especially religiously oriented morality, are usually futile because people are just going to disregard such laws and do what they damn well please anyhow. That was the case with prohibition in the 1920’s and in hundreds, if not thousands, of other instances throughout recorded history right up to our never ending War on Drugs.

Justice Scalia and other hard core religionists see homosexuality as a religious morality issue and are consequently blind to the clear fact that it’s a civil rights issue. They view homosexuals as second class citizens due to their immorality and believe that the majority of heterosexuals therefore have the right to discriminate against them.

Many of these religionists even take the position that recognizing the inherent civil rights of homosexual’s amounts to an attack upon their own precious religious liberty. “A House, Senate and president together defending traditional marriage is ruled unconstitutional, cries one outraged religionist. “Can a Roe v. Wade-like "right" to same-sex marriage — pulverizing religious liberty — be far behind?”

Next, he warns that such disregard for religious freedom will culminate in: “forcing churches to marry same-sex couples — a new kind of "shotgun wedding" for the 21st century… In shielding homosexuals from being "demeaned," they now seem ready in the near future to hold a gun to the head of clergy who refuse to marry them. That will not be America.”

“I’m furious.” declares another. “We at the National Organization for Marriage, (NOM) and tens of millions of other Americans will never accept it… “It’s wrong, plain and simple. There’s a stench to these decisions that has stained the Supreme Court… We will do everything in our power to preserve marriage across the country because marriage as God created is the most important social institution we can offer men, women and children… Marriage is hanging by a thread in America. It lost today in California, and those responsible will be coming after every remaining state that refuses to abandon the truth of marriage.”

If gays can get married and receive the same government benefits as straights, that destroys their religious liberty. Soon the government will be forcing churches to marry gays. Civilization and God’s creation of the institution of marriage is hanging by a thread. We’re the heterosexual majority and we ought to have the right to legislate our idea of morality.

This is the exact kind of hysterical nonsense we heard during the 1950’s and ‘60’s while the civil rights movement was raging. The world was about to come to an end because blacks were being granted equal protection of the law. The liberty of whites was about to be destroyed. Civilization and God’s creation of the inequality of the races was hanging by a thread. Soon the government would be forcing whites to marry blacks. We’re the white majority and we ought to have the right to legislate our idea of racial morality.

That’s what we get when we have the courts allowing the politicians to legislate morality.