Legislating the Private Morality of Same Sex Attraction imposes a Public Injustice

The preamble to the Constitution reads, “We the people of the United States, in order to form a more perfect union, establish justice,” and then goes on to list four more reasons for the founding of the government.   One of the reasons for the federal government is to establish justice.

Justice differs from morality based on the sphere of action.  In the privacy of your heart, it is immoral to be a racist.  It only becomes a public injustice if the segregationist withholds equal access to public facilities.  In 1963 when this happened in Alabama, Dr. King led a non-violent protest and was arrested.  From jail in Birmingham, he wrote a letter calling on his fellow citizens to speak out against the injustice of legalized segregation.  Dr. King could do very little about the private immorality of racist people, but he did a lot about the public injustice of segregation by appealing to the Constitution.

The Constitution was only designed to establish public justice, not private morality.  John Adams said that “Our Constitution was made only for a moral and religious people.  It is wholly inadequate to the government of any other.”  His statement reflects the Constitution’s dependency upon private morality and its inadequacy to produce it. Private morality must be derived from another source. 

Private morality is derived from personal beliefs.  Whether those beliefs are religious or atheist, they are personal and the morals derived from them are private.  I do not mean it must stay private but only that it is derived from private beliefs. Private morality will become public through either a national consensus or through special interest. When a special interest group of people ban together to legislate their private morality into law, it imposes a public injustice.  The state of Alabama did this by requiring black people to ride in the back of the bus. 

The possibility of special interest groups imposing their will on others was one of the concerns that prompted James Madison to pursue a strong federal government.  Madison is the father of the Constitution.  He and Alexander Hamilton called for the constitutional convention, and during the convention Madison exercised profound influence in shaping it.  He saw that only a strong federal government could restrain special interest groups from imposing their interest on others. 

Today, advocates of gay marriage say that special interest groups in California have imposed their private morality on homosexuals through the passage of Proposition 8. They asking the court to strike down Prop 8 in the same manner as the court overturned laws that legislated segregation.  I would argue that this is a false analogy and that the exact opposite is what this will create.   

This is a false analogy because gay rights do not correspond to civil rights.  Civil rights are based on race, which is inherited.  To date, there has been no scientific evidence that proves homosexuality is an inherited orientation.  In the 1960s scientists thought it might be hormonal but that was disproven.  In the 1980s Dr. Simon LeVay speculated it was structural but the hypothalamic cell structure theory could not be substantiated.  In the 1990s Dr. Pillar and Dr. Bailey theorized it was genetic.  But the search for the gay gene ran into a roadblock, when in the year 2000, Dr. Bailey studied all the identical twins in Australia and could not confirm the existence of a gay gene.   Nevertheless, the assumption of an inherited orientation continues in popular culture, so that, gay rights is misconstrued as civil rights.

Secondly, this is also a false analogy because no public benefits associated with marriage are withheld from same sex couples.  Through civil unions, same sex couples can obtain all the public benefits associated with marriage.  This is clear within the law, and since through civil unions, same sex couples can obtain all the public benefits associated with marriage this is not a question of equal access. 

Thirdly, this is a false analogy because the so-called special interest expressed through Proposition 8 reflected the national consensus as expressed through referendums in several states and through the Defense of Marriage Act passed by Congress and signed into law by President Clinton on September 21, 1998.  This act states that marriage is a legal union between a man and a woman and that no state is required to give effect to any other state’s recognition of same sex marriage.  

The endorsement of same sex unions as marriage by a public that has voted to not sanction gay marriage is what the court case is left to be about.  It is really about forcing upon the public the private morality of a special interest group.  And it is possible that the Supreme Court may sanction such unions based upon the fourteenth amendment. 

This would convolute what the Constitution was built upon and frustrate one of the six purposes for which it was written.  The Constitution depends upon the morality of the people and it was written to establish justice.  Whose justice?  The justice of “We the people.”   Therefore, the public justice to be establshed by the Constitution is the moral consensus of the people. 

The morality of consensus sounds contrary to the rule of law.  To some it might even sound like mob rule.  However, there are only two moral foundations upon which legal precedent can be set.  They are divine law or human consensus.  In a theocracy divine law forms the basis for legal precedent.  In a republic, human consensus forms the basis for legal precedent.  

The two primary sources for our laws acknowledge this.  English common law and the Declaration of Independence appeal to justice that was common or self evident.  The justice that the Constitution established was common or self evident to the people

This was true then and it is true now.  The fact that the Constitution was written for a moral people tells us that a moral consensus existed at the time of the writing of the Constitution.  Of course, times have changed and so has people’s perception of morality.  But that doesn’t change the role of consensus as the foundation of legal precedent. 

The role of consensus to determine precedent was acknowledged by Justice Blackmun in the Roe v. Wade decision.   He wrote, “We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus.”  Justice Blackmun then went on to decide the case based on the implied right of privacy embedded within the fourteenth amendment.  You may agree or disagree with his decision.  The only point I am making is the role that he assigned to consensus in establishing precedent.  If a consensus had formed, it would have shaped how he applied the fourteenth amendment.  Thereby, he acknowledged that consensus is the basis for precedent.

Today, a consensus has been voiced among the people and within Congress that says marriage is the legal union of a man and a woman.  For the courts to disregard this would convolute justice by using precedent to overturn consensus. For the Court to decide this case by myopically focusing on the fourteenth amendment and the precedent of the civil rights movement would be to ignore the foundational role of moral consensus to set precedent.  This would not only further strain the bonds of trust between the government and the people.  It will also impose an injustice upon the majority of the people.

If the Court chooses to impose the private morality of same sex attraction upon public institutions, it will add to injustices already committed against those who differ.  Two state schools have expelled students from their counseling programs because they did not share the school’s view of same sex attraction.  The imposition of same sex morality upon students in state schools is a public injustice.  This has happened in Michigan and Georgia . 

Since this has already happened what would sanctioning gay marriage do to public schools.  Today, school districts are free to teach or to not teach the acceptance of same sex attraction.  This is up to the local school boards.  Tomorrow, if government sanctions same sex marriage will lawsuits be filed to impose the acceptance of teaching same sex attraction?  Parents, who do not agree with the private morality of same sex attraction, can now either support school board members of like morality or move to districts that share their morality.  If this is encoded into law will parents be forced to send their children to schools that contradict their morality?  This would create the injustice of forcing parents to pay taxes to support schools that undermine their morality.

Of course this raises the spectrum of being called homophobic.  A phobia is an irrational fear. What is irrational about reasoning from cause to effect. Two students have already been removed from state school counseling programs, a professor was dismissed and then rehired at another school for disagreeing with same sex morality, a high school was sued and lost because the school stopped the prom rather than have a lesbian couple come dressed in a tux, businesses, the military and churches are already being forced to address this legally. It is not a phobia to reason from cause to effect. it is rational.

Speaking as a citizen, someone's gender preference is none of my business.  But when the gay community demands that the public endorse their gender preference by sanctioning it as marriage, they make it everyone’s business.  The gay community needs to recognize that they are not asking for tolerance.  They are asking for endorsement.  And when you ask for endorsement, you authorize those whose endorsement you seek to say yes or no.  The public has consistently said no. 

So now the gay community turns to the courts to impose their private morality.  If they win, it will create a public injustice of the same nature as the segregationists imposing their private morality through legislation.

Dr. Michael Peters

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