[The conclusion of the essay on gay marriage and the Constitution begun in my WND column today.]
What are the basic premises of the U.S. Constitution?
- Laws of nature and of Nature’s God;
- Unalienable rights endowed by the Creator for the benefit and use of humanity;
- Humanly instituted governments intended to secure the aforesaid rights, deriving their just powers from their consent (deliberate, voluntary coincidence of feeling carried into action) to exercise their rights.
With respect to these premises, the first obvious question has to do with the nature of rights. The first obvious clue to the answer is the use of the word “unalienable”. That word conveys the sense of being inseparable, in a substantial way, such that, in being parted from the object the modifies (in this case “rights”) the subject of that separation (in this case a human being) becomes, as it were, a stranger to itself. In practical terms, therefore, a human being constrained from exercising (carrying into action) the activity in question ceases to be human.
Put simply, an unalienable right is an activity essential to humanity. To be cut off from the exercise of such a right is therefore to be degraded from human status. The fact that such a right is endowed by man’s creator means that the nature of the activity it involves expresses the very nature of humanity. It reflects one of the definitive parameters of human being, one of the boundaries or rules of being that, taken all in all, distinguish what is human from what is not. Since the rights involved are sourced in the Creator, and have to do with the nature of humanity as such, they are antecedent to any and all rights subsequently created by human law. For human law presumes the existence of human beings, and the rights involved are, by definition, the indispensable basis for this presumption.
This observation is not only directly relevant to any Constitutional judgment, it is, by the plain language of the Constitution itself, unmistakably conclusive. For the 9th Amendment to the U.S. Constitution plainly states that “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” This language may or may not apply to certain rights under human law (like, for example, the “right” to own slaves in Virginia at the time the Constitution was adopted) but it certainly applies to any and all “unalienable” rights, since they are an aspect of natural law without which the “human” in “human law” would have no distinctive significance.
The way in which this bears upon the issue of so-called “homosexual marriage” is plainly obvious. Whatever else it may or may not be, homosexuality is not an activity inseparable from the concept of humanity itself. On the other hand, marriage between a man and a woman (especially in the true and natural sense of the union of their identities in the child conceived by their commingled information) is not only necessary for the existence of particular human individuals, it is also and especially necessary for preserving the existence of humanity as such.
In this respect, marriage is not a matter of freedom, but of obligation. It goes beyond the tie between particular men and women to encompass the tie between the existence of humanity as a whole and the activity of each and every human being actually capable of procreation. This intersection of the particular and general good is precisely the sphere that calls for the sovereign to exercise the power of civil government. By nature individuals are inclined instinctively to care for themselves and their loved ones. But to care for the general good of all is one of the defining elements of sovereignty. True justice does so with proper regard for each individual’s God endowed responsibility and capacity for right action, but never acts without regard for the common good that each and all are obliged to respect and serve.
This is the main reason the civil institution of marriage exists in the first place. These days people pretend that serving the good of the whole (.e.g, environmental stewardship) and respecting the good of each individual is an either/or proposition. But as endowed by the Creator, the marriage right is the paradigmatic example of just action that serves the whole while caring for each individual as a distinctive and particular whole. But in respect of the premise of unalienable rights, the Constitution makes it plain that this mutual service to humanity takes precedence over subsequent determinations of right in human law.
Whatever this means for the practice of homosexuality without reference to marriage, it certainly means that no humanly fabricated right can be allowed to deny or disparage the unalienable right essential for the natural conception and perpetuation of humanity itself. Such denigration of antecedent unalienable right would not only be unconstitutional, it would explicitly contravene the aim (to secure unalienable rights) for which all governments are instituted in the first place.
This would be an attack on the people of the United States more grievous than that which led the first generation of Americans to declare their independence from Great Britain. If even a significant minority of Americans continue in their attachment to the unalienable right of liberty (as opposed to the licentious freedom that has, in some quarters usurped that name) this attack is likely to produce the separation and dissolution of the United States, for like humanity itself the United States is inconceivable apart from respect for God-endowed unalienable right.