NO IMPERFECT UNIONS:

The Necessary Amendment (Robert H. Bork, August/September 2004, First Things)

Within the next two or three years, the Supreme Court will almost certainly climax a series of state court rulings by creating a national constitutional right to homosexual marriage. The Court’s ongoing campaign to normalize homosexuality—creating for homosexuals constitutional rights to special voting status and to engage in sodomy—leaves little doubt that the Court has set its course for a right to marry. This is but one of a series of cultural debacles forced upon us by judges following no law but their own predilections. This one, however, will be nuclear. As an example of judicial incontinence, it will rival Roe v. Wade, and will deal a severe and quite possibly fatal blow to two already badly damaged but indispensable institutions—marriage and the rule of law in constitutional interpretation.

The wreckage may be subtler but more widespread even than that. Such a decision would ratify, in the most profound way, the anarchical spirit of extreme personal and group autonomy that is the driving force behind much of our cultural degradation. Call it what you will—moral chaos, relativism, postmodernism— extreme notions of autonomy already suffuse our culture, quite aside from any assistance from the courts. But judicial endorsement, which is taken by much of the public to state a moral as well as a legal truth, makes the anything-goes mentality even harder to resist. The principle undergirding radical autonomy is essentially unconfineable. Thus, Justice Byron White, Senator Rick Santorum, and William Bennett have all made the point that the rationale for same-sex marriage would equally support group marriage, incest, or any other imaginable sexual arrangement.

That surely is the meaning, insofar as it has a discernible meaning, of the imperialistic “mystery passage” first articulated by three justices in a case upholding the right to abortion and repeated in the majority opinion creating a right to homosexual sodomy:

[Our] law affords constitutional protection to . . . the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, [which] are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty [protected by the Constitution] is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.

Reading these words, it is hard to know what there is left for legislatures to do, since each individual is now a sovereign nation.

The only real hope of heading off the judicial drive to constitutionalize homosexual marriage is in the adoption of an amendment to the Constitution. The language of the amendment now before Congress is this:

Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution nor the constitution of any state shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.

The amendment is intended primarily to stop activist courts from redefining marriage in any way they see fit, as the Supreme Judicial Court of Massachusetts has recently done. The first sentence, however, also limits legislatures by defining marriage as the people of the United States and of the West have known it.

The argument of some conservatives, which Judge Bork notes, that amending the Constitution is worse than allowing marriage to be destroyed, elevates means above ends. The Constitution is, as it states, devised to:

...form a more perfect Union, establish Justice, insure domestic Tranquillity, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Actions which instead attack the general Welfare must be fought by any means necessary.

Posted by Orrin Judd at October 24, 2004 8:35 AM