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The Logic of the Court and the Prospect of Homosexual Marriage
Crisis Magazine ^ | 3/19/13 | Robert R. Reilly

Posted on 03/19/2013 9:41:00 AM PDT by marshmallow

Next week, the Supreme Court will begin its consideration of two cases, one concerning the Defense of Marriage Act and the other California’s Proposition 8 Amendment, which may settle in the near-term the questions concerning the constitutionality of same-sex marriage. Both the Marriage Act and Proposition 8 define marriage as being between a man and a woman. The litigants, along with the Obama administration, claim that this definition denies a fundamental human right to homosexual couples. In order for this claim to be true, a marital union would have to be just as legitimately based upon a sodomitical act, as on a conjugal one. Can this be so? How might the Court decide on this?

It turns out that the Court has already done much to prepare the ground work for the legalization of homosexual marriage through a series of extraordinarily misconceived rulings that have legitimized the separation of sex from procreation. In order to see them in their proper light a little history regarding the status of sodomy in America is necessary.

Long before the invention of the word homosexual in the late 19th century, sodomy was morally regarded as a gravely disordered act, no matter by whom performed. In the Commentaries on the Laws of England, a hugely influential book in the American colonies and on the formation of the American legal system, William Blackstone wrote that “[Sodomy is] an offense of so dark a nature, the very mention of which is a disgrace to human nature, a crime not fit to be named (Vol. IV, 1769).” Blackstone’s work was frequently cited in American jurisprudence.

One of the more contemporary Blackstone citations came in Supreme Court Justice Warren Burger’s concurring decision in the Bowers v. Hardwick (1986) case, which upheld the constitutionality of an Alabama law against sodomy........

(Excerpt) Read more at ...

TOPICS: Current Events; Moral Issues; Religion & Culture; Religion & Politics
KEYWORDS: doma; homosexualagenda; scotus; ssm

1 posted on 03/19/2013 9:41:00 AM PDT by marshmallow
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To: marshmallow

If the Constitution can be read so as to nationalize marriage between other than one man and one woman, then I say to hell with it.

2 posted on 03/19/2013 9:51:09 AM PDT by ex-snook (God is Love)
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To: ex-snook


“By way of reference, if you would like to read a legal treatise on marriage, one of the best is “Principles of Community Property,” by William Defuniak. At the outset, he explains that Community Property law decends from Roman Civil Law through the Spanish Codes, 600 A.D., written by the Spanish jurisconsults. In the civil law, the marriage is considered to be a for-profit venture or profit-making venture (even though it may never actually produce a profit in operation) and as the wife goes out to the local market to purchase food stuffs and other supplies for the marriage household, she is replenishing the stocks of the business. To restate: In the civil law, the marriage is considered to be a business venture, that is, a for-profit business venture. Moreover, as children come into the marriage household, the business venture is considered to have “borne fruit.”

Now, back to the explanation by the Maricopa County Superior Court, Marriage Bureau’s administrative Assistant. He went on to explain that every contract must have consideration. The State offers consideration in the form of the actual license itself — the piece of paper, the Certificate of Marriage. The other part of consideration by the State is “the privilege to be regulated by statute.” He added that this privilege to be regulated by statute includes all related statutes, and all court cases as they are ruled on by the courts, and all statutes and regulations into the future in the years following the commencement of the marriage. He said in a way the marriage license contract is a dynamic or flexible, ever-changing contract as time goes along – even though the husband and wife didn’t realize that. My thought on this is can it really be considered a true contract as one becomes aware of the failure by the State to make full disclosure of the terms and conditions. A contract must be entered into knowingly, intelligently, intentionally, and with fully informed consent. Otherwise, technically there is no contract. Another way to look as the marriage license contract with the State is as a contract of adhesion, a contract between two disparate, unequal parties. Again, a flawed “contract.” Such a contract with the State is said to be a “specific performance” contract as to the privileges, duties and responsibilities that attach.

Consideration on the part of the husband and wife is the actual fee paid and the implied agreement to be subject to the state’s statutes, rules, and regulations and all court cases ruled on related to marriage law, family law, children, and property. He emphasized that this contractual consideration by the bride and groom places them in a definite and defined-by-law position inferior and subject to the State. He commented that very few people realize this. He also said that it is very important to understand that children born to the marriage are considered by law as “the contract bearing fruit” — meaning the children primarily belong to the State, even though the law never comes out and says so in so many words. In this regard, children born to the contract regarded as “the contract bearing fruit,” he said it is vitally important for parents to understand two doctrines that became established in the United States during the 1930s. The first is the Doctrine of Parens Patriae. The second is the Doctrine of In Loco Parentis. Parens Patriae means literally “the parent of the country” or to state it more bluntly – the State is the undisclosed true parent. Along this line, a 1930s Arizona Supreme Court case states that parents have no property right in their children, and have custody of their children during good behavior at the sufferance of the State. This means that parents may raise their children and maintain custody of their children as long as they don’t offend the State, but if they in some manner displease the State, the State can step in at any time and exercise its superior status and take custody and control of its children — the parents are only conditional caretakers. He also added a few more technical details. The marriage license is an ongoing contractual relationship with the State.

Technically, the marriage license is a business license allowing the husband and wife, in the name of the marriage, to enter into contracts with third parties and contract mortgages and debts. They can get car loans, home mortgages, and installment debts in the name of the marriage because it is not only a secular enterprise, but it is looked upon by the State as a privileged business enterprise as well as a for-profit business enterprise. The marriage contract acquires property throughout its existence and over time, it is hoped, increases in value.

Also, the marriage contract “bears fruit” by adding children. If sometime later, the marriage fails, and a “divorce” results the contract continues in existence. The “divorce” is merely a contractual dissolution or amendment of the terms and conditions of the contract.

Jurisdiction of the State over the marriage, over the husband and wife, now separated, continues and continues over all aspects of the marriage, over marital property and over children brought into the marriage. That is why family law and the Domestic Relations court calls “divorce” a dissolution of the marriage because the contract continues in operation but in amended or modified form. He also pointed out that the marriage license contract is one of the strongest, most binding contractual relationships the States has on people.

At the end of our hour-long meeting, I somewhat humorously asked if other people had come in and asked the questions I was asking? The Assistant replied that in the several years he had worked there, he was not aware of anyone else asking these questions. He added that he was very glad to see someone interested in the legal implications of the marriage license and the contractual relationship it creates with the State. His boss, the young woman Marriage Bureau department head stated, “You have to understand that people who come in here to get a marriage license are in heat. The last thing they want to know is technical, legal and statutory implications of the marriage license.” (Laughter) “

3 posted on 03/19/2013 10:12:20 AM PDT by Herbster
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To: marshmallow

I fully expect “Meet me in the John” Roberts to vote for gay marriage.

4 posted on 03/19/2013 10:15:12 AM PDT by Dr. Thorne ("How long, O Lord, holy and true?" - Rev. 6:10)
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To: marshmallow

You can see the writing on the wall. Eventually, the homosexuals are going to get homosexuality declared a disability. Then, they will start receiving your tax dollars through Social Security Disability. Then, ladies and gentlemen, you will be working so you can send your hard-earned tax dollars to a homosexual so he can buy a blowjob in a bath house in San Francisco. The next step will be to make you come and watch, and then you’ll be expected to participate. It’s a Brave New World.

5 posted on 03/19/2013 10:44:24 AM PDT by blueunicorn6 ("A crack shot and a good dancer")
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To: blueunicorn6

It’s a mental illness but they got that thrown out of the APA so good luck with the disability ruse.

6 posted on 03/19/2013 11:13:26 AM PDT by USAF80
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To: marshmallow; Lurking Libertarian; JDW11235; Clairity; TheOldLady; Spacetrucker; Art in Idaho; ...

FReepmail me to subscribe to or unsubscribe from the SCOTUS ping list.

7 posted on 03/19/2013 11:14:56 AM PDT by BuckeyeTexan (There are those that break and bend. I'm the other kind. ~Steve Earle)
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To: blueunicorn6

What? Wait a minute here...didn’t the APA used to afirm that it was a disease? Oh noes! Good greif...

8 posted on 03/19/2013 11:15:36 AM PDT by Herbster
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To: Lurking Libertarian; JDW11235; Clairity; TheOldLady; Spacetrucker; Art in Idaho; GregNH; ...
For your reference, here is Justice Scalia`s dissent in Lawrence v. Texas, which was the case that overturned state laws making sodomy illegal.

Below are a couple of excerpts from his dissent that I think are pertinent to the thread topic:

Countless judicial decisions and legislative enactments have relied on the ancient proposition that a governing majority’s belief that certain sexual behavior is “immoral and unacceptable” constitutes a rational basis for regulation. (...) State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers’ validation of laws based on moral choices. (...) “The law,” it said, “is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed.”
Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct. (...) It is clear from this that the Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed. Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive. (...) The Court views it as “discrimination” which it is the function of our judgments to deter. So imbued is the Court with the law profession’s anti-anti-homosexual culture, that it is seemingly unaware that the attitudes of that culture are not obviously “mainstream”; that in most States what the Court calls “discrimination” against those who engage in homosexual acts is perfectly legal; that proposals to ban such “discrimination” under Title VII have repeatedly been rejected by Congress,
Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means. Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best. That homosexuals have achieved some success in that enterprise is attested to by the fact that Texas is one of the few remaining States that criminalize private, consensual homosexual acts. But persuading one’s fellow citizens is one thing, and imposing one’s views in absence of democratic majority will is something else. I would no more require a State to criminalize homosexual acts–or, for that matter, display any moral disapprobation of them–than I would forbid it to do so. What Texas has chosen to do is well within the range of traditional democratic action, and its hand should not be stayed through the invention of a brand-new “constitutional right” by a Court that is impatient of democratic change. It is indeed true that “later generations can see that laws once thought necessary and proper in fact serve only to oppress,” ante, at 18; and when that happens, later generations can repeal those laws. But it is the premise of our system that those judgments are to be made by the people, and not imposed by a governing caste that knows best.
Here is the Court`s opinion in Bowers v. Hardwick to which Justice Scalia refers.
9 posted on 03/19/2013 11:48:07 AM PDT by BuckeyeTexan (There are those that break and bend. I'm the other kind. ~Steve Earle)
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To: Dr. Thorne

There’s about a 95% chance this “Catholic” will spit in the face of God and allow sodomite marriage. He’ll say marriage is nothing more a it’s a “civil contract” and that anyone should be able to “marry” anyone. The Bible will not come into play. Marriage will treated exactly like a contract and nothing more. Then we will have men “marrying” their mothers, dogs, cats, chairs, rifles, anything goes when Roberts says DOMA is unconsitutional and that men who have anal sex with each other should be allowed to “get married” like anyone else, and all states in the country have to recognize their “marriage” whether they like it or not.
Roberts is liberal Bush’s gift to America.

10 posted on 03/19/2013 12:25:50 PM PDT by NKP_Vet
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To: Herbster
If SCOTUS guts DOMA or overturns Proposition 8, it will probably be a "narrow" ruling that won't force homosexual "marriage" on the entire country in one fell swoop...

But if they do crack the door a bit for the gays (which is likely), it will be interesting to see how they do this without also kicking it wide open for polygamy, group marriage, etc.

And when the gender-based structure of traditional marriage is invalidated, it will eventually be replaced in homosexual culture by an age-based structure (i.e. "pederasty") as it always has been in every society that historically had no real prohibition on homosexual behavior. Ancient Greece, Dynastic China, Feudal Japan, and the Ottoman Turkish Empire are famous examples of this.

The stage is set in the growing gay assault on the Boy Scouts, "gay" and "transgender" children paraded before the cameras, and the GSA's (gay - straight alliances) in our schools.

The GSA's are sponsored by the truly subversive organization, GLSEN ("glisten") - the Gay, Lesbian, Straight Education Alliance ( which actively engages in homosexual "recruitment" of minors with gems like this: "The GLSEN Jump-Start Guide, Part 6, Creating Youth-Adult Partnerships",

wherein adolescents are taught about gay "relationships in which adults and youth learn from one another" (!)

Our kids are what the gays are really after, as has always been the case...

11 posted on 03/19/2013 1:45:13 PM PDT by FreddyAtNight
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To: marshmallow; ex-snook; Herbster; Dr. Thorne; blueunicorn6; USAF80; BuckeyeTexan; NKP_Vet; ...
This is a states’ issue. The subject of marriage is simply not a Constitutional matter. SCOTUS must reverse federal court's decision(s) overruling state law(s) regarding marriage and remand back to the states for final disposition.

Otherwise, the states are going to have to take on the feds directly and start an initiative to nullify and not recognize if SCOTUS decides to usurp states’ authority in this matter.

12 posted on 03/19/2013 6:47:09 PM PDT by PapaNew
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To: FreddyAtNight

Make that the “Gay, Lesbian, & Straight Education NETWORK” for GLSEN!

13 posted on 03/19/2013 9:43:37 PM PDT by FreddyAtNight (edit)
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