Can judges redefine reality? In Virginia, yes.

A recent ruling on same-sex marriage ignores the fundamentals of human sexuality.
Robert R. Reilly | 17 February 2014
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Denial of reality on the marriage issue is becoming almost impermeable. Self-reinforcing decisions from one federal court to another are weaving together a skein of an alternate reality in which we will all soon be required to participate.

It just hit Virginia, where I reside. On February 13, US District Judge Arenda L. Wright Allen chose to disenfranchise the citizens of the Commonwealth by voiding that part of our constitution and those laws that define marriage as between one man and one woman as unconstitutional.

Inaptly, Judge Wright Allen began her decision by confusing the basic texts of the American Founding (since corrected). She apparently thought that the phrase that “all men are created equal” comes from the Constitution. It is, of course, perhaps the single most famous statement in the Declaration of Independence. Its author was Thomas Jefferson. Judge Wright Allen appeals to this principle to endorse same-sex marriage on behalf of two lesbian and homosexual couples, who brought suit against Virginia.

What might Thomas Jefferson have thought of this use of the meaning of equality? We can more than guess. In 1778, Jefferson introduced the Bill for Proportioning Crimes and Punishment, which proposed that “Whosoever shall be guilty of Rape, Polygamy, or Sodomy with man or woman shall be punished, if a man, by castration, if a woman, by cutting thro’ the cartilage of her nose a hole of one half inch diameter at the least.”

We can safely conclude from this that Jefferson, who was actually trying to reduce the capital penalties for these crimes, would nonetheless not have endorsed same-sex marriage, the homosexual expression of which almost invariably involves sodomy.

Why might Jefferson have proposed this bill to penalize sodomy and why does Virginia have laws against same-sex marriage? One would have to conclude from Judge Wright Allen that it was from sheer prejudice and that only now has the light dawned upon the Court that this is unfair.

In fact, she asserts that there is a lack of “any rational basis” in Virginia’s exclusion of same-sex couples from marriage. In fact, she inaccurately states that “These laws limit the fundamental right to marry to only those Virginia citizens willing to choose a member of the opposite gender for a spouse.”

Actually, they limit it much further than that, to exclude minors, the already married, the mentally infirm, immediate kin, and others. But why might this limitation exist in respect to same-sex couples? Judge Allen never says, though she could’ve drawn upon several thousand years of Western and other civilizations to do so.

Prejudice means pre-judgment – precisely the lack of rational consideration, which is essential to good judgment. The marriage laws of the United States, which have endured until recently, were not result of prejudice, but of rational judgment. Was that judgment sound? We would never know how to answer this question since the reasons for it are missing from this ruling.

Here’s part of what Judge Wright Alan neglects to say – even though it is part of the judicial history of the United States of which you should be aware. In 1885, Murphy v. Ramsey, which upheld the ban against polygamy in the Utah territory, eloquently put forth the “legitimate purpose” of marriage. Murphy stated that:

“certainly no legislation can be supposed more wholesome and necessary in the founding of a free, self-governing commonwealth… than that which seeks to establish it on the basis of the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization; the best guarantee of that reverent morality which is the source of all beneficent progress in social and political improvement.”

However, Judge Wright Allen might object that this is exactly what same-sex couples want in marriage, as well. But they can’t have it – not for reasons having anything to do with nasty conservatives or with the law, but everything to do with how human beings are made.

The ultimate, inbuilt end of sex is to make “one flesh,” which is what happens in marriage between a man and a woman. Two becoming “one flesh” encompasses both the generative and unitive nature of sex. Only men and women are physically capable of becoming “one flesh”. Only a unitive act can be generative, and only a generative act can be unitive—in that only it makes two “one flesh”. That is why the unitive and procreative aspects of sex are essentially inseparable, and why they find the fulfilment only in the unique station of marriage.

What happens between a man and a woman in marriage cannot happen between two men or two women in a so-called marriage or otherwise. This is not a matter of who says, but of human nature, with every bit as much relevance to human flourishing and freedom as the “Laws of Nature and of Nature’s God” to which the Declaration appealed for our independence. Change the meaning of nature at the level of marriage, and it will change the meaning at the level of the Declaration, with very profound consequences.

For homosexual couples, the marital act is physically impossible—the pieces don’t fit—and the attempt to ape it through sodomy is hygienically compromised and incapable in any circumstances of generating new life. One thing that same-sex couples all share is a unique disability to express either the unitive or procreative essence of conjugal relations.

For these reasons, among many others, common law has held through the centuries that marriage can be only between a man and a woman. Common law also held that if a marriage is not consummated, it could be declared to be a legal nullity. It is astonishing that Judge Allen seems to be unaware of these things, though she shares her amnesia with Supreme Court Justice Anthony Kennedy and many others.

Perhaps my favourite line from the ruling is that the “[homosexual persons] meet all of the legal requirements for marriage in Virginia except for the fact that they are the same gender.”

So what? This is like saying that the only thing that prevents a duck from being a goose is the fact that it is a duck. Somehow, I feel that Judge Wright Allen would have failed Abraham Lincoln's famous quiz when he asked, “If you call a tail a leg, how many legs has a dog?" As if for Judge Wright Allen's future benefit, he answered, "Five? No, calling a tail a leg doesn’t make it a leg.” Does the principle of equality require that a dog have five legs, or that a duck be a goose? Should we be required by law to say that tails are legs, or that ducks and geese are the same? Is that equality, or insanity?

One could easily extend the court’s logic by paraphrasing the court’s statement above and, by saying that my sister and I “meet all the legal requirements for marriage in Virginia except for the fact that” we are brother and sister. The same is true for loving uncles and nieces or nephews. And for choir masters and choir boys.

To say that something is what it isn’t and can never be is an offense against reason, reality and sanity. Judge Allen’s decision is such an offense. Once you accept this basic unreality, it spreads, as is evident in Judge Allen’s opinion. She states, for instance, that “Ms Townley gave birth to the couple's daughter.” But, of course, she didn’t: the child was the daughter of Ms Townley and the father of the child – not of her lesbian partner.

Also, “Despite being deprived of the opportunity to participate in a legal adoption of her daughter, Ms. Schall is a loving parent.” No doubt the love is not in question, but the child is not and could not be Ms. Schall’s daughter, nor could she be its parent, as it is impossible for her to be the father.

One must also note that such children are deliberately made to be without both parents. Why is there no mention of the child’s deprivation of one of its parents to make it possible for an unrelated person of the same gender as the mother to “love” it? A family is made to be broken, or rather broken to be made for the satisfaction of the same-sex spouse member who is not a parent. Too bad for the child who will never have both a father and a mother.

In some states, entering into a marriage with the intent of never consummating the marriage is considered to be marital fraud. Since same-sex marriages cannot be consummated, one might say that Judge Wright Allen is complicit in perpetrating marital fraud, while disenfranchising the voters of Virginia.

Judge Wright Alan tries to cover her sloppy thinking by quoting Abraham Lincoln in respect to slavery; "It can not have failed to strike you that these men ask for just … the same thing — fairness, and fairness only.” Indeed, his fight against slavery, Lincoln appealed to Jefferson’s famous phrase that “all men are created equal.”

However, Lincoln said something else that shows he, like Jefferson, knew that, while all people are equal, not all acts are equal – something which Judge Wright Alan, along with a number of other justices, has apparently forgotten. He said that one “cannot logically say that anybody has a right to do wrong”. Both Jefferson and Lincoln found sodomy morally wrong.

Like recent decisions similar to it, Judge Wright Allen’s ruling is an act of will, not an act of law. It is an exercise of raw judicial power that shares in the coercive attempt to reconstitute reality for the benefit of those who require an alternate reality to rationalize their behaviour. They want a right to do wrong. Outrageously enough, she invokes Jefferson and Lincoln to give it to them. This effort will fail because reality is resilient and resistant to its denial. Nonetheless, this may provide little comfort to those who must now suffer through the massive distortion of human life of which this ruling is a part.

Robert R. Reilly is the author of Making Gay Okay: How Rationalizing Homosexual Behavior Is Changing Everything, due out next month from Ignatius Press. 

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