Slouching Towards Gomorrah (60 page)

The point of this discussion is not that we are about to be overwhelmed by a tidal wave of pedophilia, but rather that the unimaginable becomes imaginable, and then actual, when some moral lines—call them taboos, if you will—weaken and become vulnerable.

It is in this sense that White, Santorum, and Bennett are dead right about there being no difference in principle between the legalization of homosexual sodomy and homosexual marriage and the other behaviors they cite. Indeed, the groundwork for permitting such behavior has already been laid in the ultralibertarian “mystery passage” of
Casey
and
Laurence.
If abortion and homosexual sodomy are among “the most intimate and personal choices a person may make in a lifetime,” if they are “choices central to personal dignity and autonomy,” if they are “central to the liberty-protected by the Fourteenth Amendment,” and if, as the Court assured us, such practices are protected as “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life,” then how can adultery, polygamy, the marriage of three men, or the marriage of a father and daughter be far behind? To exclude them would be indefensibly arbitrary, a manifestation of simple bigotry. By the mystery passage’s logic, if that is the word, homosexual marriage is inevitably the next step.

That being the case, it should be obvious that the more homosexuality is accepted as one among other varieties of the normal,
leading up to homosexual marriage, the more traditional heterosexual marriage is demeaned, becoming itself no more than one sexual arrangement among others. That in turn demeans the family’s place as the central institution of stability and childrearing in society. Homosexual marriage cannot substitute for traditional marriage in these respects. Though there is a dispute about the statistics on the longevity of homosexual unions, there is no dispute that they are far briefer than heterosexual marriages. There is similarly no dispute that men in homosexual relationships have many more sexual encounters outside the relationship than do heterosexuals. There are, it appears, monogamous homosexual partners, but it is notorious that promiscuity is rampant in much of that culture. Richard Fitzgibbons notes that “the majority [of men in same-sex attractions] will have more than twenty sexual partners per year, and less than nine percent of those with same-sex attractions will have relationships that last three years.“
³⁶
Another study found that 95 percent of couples have an arrangement that allows the partners to have sexual activity with others.
³⁷
These findings are not new. Other studies show the same pattern, although they are hardly necessary, since the centrality of promiscuity in the homosexual culture is common knowledge.

It may be accounted odd that a sexual practice with such dire effects upon individuals and on society has become so widely accepted. But that it has is undeniable. The Episcopal Church has not only ordained homosexual priests but elevated a practicing homosexual to the post of bishop, and has made the celebration of homosexual unions in church a matter of local option. Quite soon it will be mandatory. More startling is the silent advance of homosexuality within the American Catholic Church. Official doctrine opposes homosexual acts, and the Pope has stated the unacceptability of homosexual marriage. There are, nevertheless, apparently significant numbers of homosexually active priests, and there is open pro-homosexual sentiment in the church.

Cardinal Francis Arinze, a Nigerian who presides over the Pontifical Council for Interreligious Dialogue at the Vatican, gave Georgetown University’s commencement speech this year. In the section devoted to God’s gift of the family, Arinze said, “In many parts of the world, the family is under siege. It is opposed by an anti-life mentality as is seen in contraception, abortion, infanticide
and euthanasia. It is scorned and banalized by pornography; desecrated by fornication and adultery, mocked by homosexuality, sabotaged by irregular unions and cut in two by divorce.” A professor of theology protested the reference to homosexuality by leaving the stage while Arinze was speaking, and a number of students walked out. A professor of American Studies at the university questioned why, at a commencement, the Cardinal “decided to do the pro-family thing” and called the prelates comments “unchristian.” A protest letter signed by about seventy faculty members was delivered to the dean of arts and sciences who had invited the Cardinal to speak.

This was an extraordinary performance, and an amazing illustration of the cachet homosexuality has achieved. A Catholic cardinal, speaking at a Catholic university, utters orthodox Catholic doctrine, and provokes an uproar from Catholics. The event gives point to Robert Royal’s remark that the Church is supposed to evangelize the culture but instead the culture is evangelizing the Church.

There are two possible routes to a judge-created right to homosexual marriage. One is a direct attack on state marriage laws in state or federal courts, followed by review in the Supreme Court. Though
Lawrence
v.
Texas
indicates that the homosexuals would win, there is the possibility that the prospect of an uproar by an enraged public would cause the Court to temporize. A more circuitous route may, therefore, commend itself to the lawyers for the homosexuals. This would involve an attack in state courts based on state constitutions (rulings involving only state law are not appealable to the Supreme Court). There is little doubt that the argument for homosexual marriage would prevail in a number of state courts, but it would take only one favorable ruling to set the process in motion. After a clear victory in a state court, homosexuals will come to that state, marry, and then claim the marital status in their home states under Article IV, section 1 of the United States Constitution: “Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved and the effect thereof.” Some states may refuse to accord homosexual marriages on the grounds of their public policy as
well as upon the federal Defense of Marriage Act (DOMA), relying upon Congress’s power given by the constitutional clause just quoted. DOMA provides that no state shall be required to give effect to the law of any other state with respect to a same-sex marriage. The homosexuals will then challenge DOMA as violative of the invented right of privacy, as well as the Equal Protection Clause. These rights were invented or enacted after Article IV and will be said to override it. Given the mood of the present Supreme Court majority, the activists will almost certainly succeed, full faith and credit will be ordered given to same-sex marriages, and the United States will have a right to homosexual marriage, spread by one state to the other forty-nine.

The only apparent way to avoid this result is by a constitutional amendment. Language such as the following is now being urged: “Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution or the constitution of any state, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.” Though the amendment has gathered considerable support even at this early stage, it has, interestingly enough, received some opposition from both the Left and the Right. The ACLU claims that the second sentence of the amendment would prohibit legislation allowing civil unions and opposes the amendment on that ground; they read “construed” as if it meant “applied,” thus misunderstanding a requirement that courts not read marital status or its incidents into laws not explicitly addressing these topics. Concerned Women for America, on the other hand, has declared opposition because civil unions would not be barred. It is clear that the amendment does not affect the legality of legislatively approved civil unions, and that, far from being a defect, is the amendment’s virtue: it does not preclude democratic decisions on the subject.

The danger we face is from runaway courts, not elected legislatures, and it is that danger that the amendment seeks to avert. The second sentence uses the word “construed” rather than “applied” or some similar word to indicate that it is judicial invention that is barred, not the straightforward application of explicit law. That distinction will be made even plainer by the discussion of those who support the amendment. The legislative history will
further lay to rest any fears on this score. The bona fides of those who oppose the amendment on the ground that it would bar democratically enacted provisions for civil unions may be doubted because they do not propose any word or group of words that would make the matter clearer. What they want is a right to same-sex marriage—a right that will not exist unless made up by courts—and that requires the defeat of this amendment.

The objections from the Right are no more persuasive. Whether or not it would be desirable to bar legislatures from authorizing civil unions, the attempt to do so would almost certainly assure the amendments defeat; Americans are tolerant on that subject as they are not on the topic of same-sex marriages. Reaching too far would leave not only civil unions but same-sex marriage open to judicial creation of such rights. There is some conservative opposition to the amendment on the grounds that family law, including the law of marriage, is a matter for the states, not the federal government. That is an argument that might have had resonance in a different era; it has none now. The question of homosexual marriage is going to be decided at the national level; either there will be a constitutional right to such marriages, created out of whole cloth by judges, or there will be an amendment to block that development.

Each of the subjects discussed in this Afterword has been heavily influenced, if not determined, by courts, most prominently by the Supreme Court. In each case, the Court has departed from any plausible meaning of the Constitution or a statute. We have, then, national law with respect to our culture that has nothing to do with the Constitution or statute but everything to do with the captious ponderings of a majority of the Justices, led in turn by the latest visions of the self-anointed intellectual elite.

Matters are worse than this, however Courts have become partisans in our culture war, just as the courts of other Western nations have become partisans in theirs. The culture war is transnational—the contending ideas are the same—and it is natural, though thoroughly illegitimate, that the various national courts, which side with intellectual class liberals, would begin to cooperate in forcing their respective cultures in the same direction. As Minogue wrote: “We may define Olympianism as a vision of human betterment to be achieved on a global scale by forging the
peoples of the world into a single community based on the universal enjoyment of appropriate human rights…. Olympians instruct mortals, they do not obey them.“
³⁸

We should not be surprised, then, to find the United States Supreme Court “interpreting” the American Constitution in accordance with foreign court decisions. In
Lawrence
v.
Texas
, as already noted, the Court cited a decision of the European Court of Human Rights to show that it was false to say that a claim of a right to engage in homosexual behavior was insubstantial in Western civilization. In
Grutter
; Justices Ginsburg and Breyer concurred to cite the International Convention on the Elimination of All Forms of Racial Discrimination. The internationalization of United States law continues apace,
³⁹
so much so that the reporter covering the Court for the
New York Times
, citing the engagement of American Justices with foreign judges and constitution writing, could say with every indication of approval, “it is not surprising that the justices have begun to see themselves as participants in a worldwide constitutional conversation.“
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She could more accurately have said, “a worldwide constitutional convention.“

There could hardly be a plainer demonstration that some Justices are leaving the text and history of the U.S. Constitution behind for a left-liberal international moral consensus among Olympians. It is bad enough that this is the rule of judges, not the rule of law, and that the Olympian version of morality is being imposed on majorities that do not want it. It is still worse if this internationalization of law is a major force in a movement toward more international government, which, as we see in the European Union, is likely to be authoritarian, if not ultimately tyrannical.

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abortion, 55, 103, 116, 172—85, 192, 202

Catholic church’s teachings on, 280, 282

right-to-die cases and, 111, 185—86

Abzug, Bella, 195—97, 206

achievement principle. 238