Legislating Morality
  by Dr. David Eller

The Supreme Court recently-correctly-struck down a Texas sex law that had landed a gay couple in jail, arrested in their own home for consensual relations. The outcry immediately following the decision has been nothing short of hysterical. Senator Rick Santorum had already predicted that granting gay sex (I will not say "sodomy" since that is a religious concept named after a fictitious religious town) would lead to granting polygamy, incest, prostitution, adultery, and bestiality. Cal Thomas, our own local moral policeman, agreed, adding that "the end of the Constitution has arrived," particularly its power to legislate sexual conduct. Even George Will published a column titled "Before Long, Even Incest Will Be Constitutionally OK."

This is of course ridiculous and alarmist, but our Colorado paleoconservative Congresswoman Marilyn Musgrave has still taken the opportunity to push her constitutional marriage amendment, introduced on May 21, which would define marriage as "the union of a man and a woman" (presumably only one of each) and outlaw any state or federal efforts to define it otherwise. This constitutional ban on gay marriage would merely supplement the Colorado ban already in effect, thanks to Musgrave.

The brouhaha over gay sex boils down to two related issues. One is gay marriage and the general "defense" of marriage in America. Anti-gay types see the Supreme Court ruling as the first step toward permitting gay marriage. If this is so (and it may be), why is that a problem? Thinkers like Will view marriage as "grounded in nature," which certainly it is not; it is a social institution. How gay marriage would change it, I don't know. Do they think that straight people will say, "Oh, I guess I could have married a gay instead?" Do they think their own marriages will weaken in some way? Do they think their spouses-or they themselves-will be tempted away into a gay marriage? If anything, consider gay marriage rights a "pro-marriage" move-extending and encouraging marriage as far as possible in society.

The second and more basic issue is morality-sexual morality narrowly, all morality generally. Thomas, Wills, and even Supreme Court Justice Scalia view the recent decision as depriving the government of the power to legislate morality. Hopefully so. They gripe that the courts have usurped electoral powers by overriding popular laws. That was what "Brown v. Board of Education" did when it struck down racial segregation. That is one thing that courts are for. Voters and legislators cannot enact discriminatory laws, no matter how popular. Anti-gay laws are discriminatory, period. And there is only one justification and motivation for them-religion. Certain American Christians feel that homosexuality is biblically wrong and that government should institutionalize their beliefs. But the problem with legislating morality is that it is always only some people's morality. Some would make laws against blacks, Jews, women, and atheists too-and they have over history. Given the opportunity, they might restore the biblical punishment for blasphemy, disobeying your parents, or working on Sunday-which is death.

This all merely reveals the lie in the claim that the Constitution is a Christian document. Thomas Jefferson, referring to other people's religion, said "it neither breaks my leg nor picks my pocket." Neither does another person's consensual sexuality, and it is no business of government.

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