(This is a reply I wrote on a Note by my best friend and confidant. In his post he wrote of much the same material as I have covered below. However, I felt that there was need for a history lesson in U.S. constitutional law and Western philosophy to show where our "city upon a hill" is inherently flawed and when these socio-political problems originated. While I do not have all the answers, as I am not Socrates' fabled "philosopher king" of Greek lore, I do have my opinion on the matter based on what lessons I have learned from the historical narratives, biographies, and philosophical pamphlets and books I have read. It took me two hours to research and write this; the fact that some of the facts are derived ignominiously from Wikipedia, which is not a scholarly source, bothers me since I could not find my Gordon S. Wood book from my American Revolution class I took three years ago with my favorite college professor/lecturer.
Feel free to opine on any point I make here whether or not you agree with my statements. Though this does not directly mention him, it is this type of writing that will unseat such ultra conservative religious demagogues like Stacey Campfield who seek to deny citizens their natural rights of man. Again, feel free, whether or not you agree, to post what you believe. I cannot possibly appeal to everyone's sensibilities; the only thing I can do is exercise my First Amendment rights and speak up on a grave injustice that plagues our society.)
I have discussed this topic (the legalization of same-sex marriage) ad nauseum, and yet again I find myself compelled to write on this very annoying issue. I have seen more of those red pictures with the equal sign signifying marriage equality than I care to, and I am just sick of it becoming such a cliche in just a short period of time. Regardless of these observances and my personal disdain of liberal and conservative hypocrisy and failure to adhere to the Constitution and Bill of Rights, I am about to get on my soap box yet again.
The history of the violation of the constitutional directive of separation of church and state stretches back as many years as the origins of the American republic. Thomas Jefferson believed that each man had "certain unalienable rights," and he defined the right of "liberty" by saying, "Rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others...." For Jefferson, this meant that the proper government not only prohibits individuals from infringing upon the liberties of others, but also prohibits itself from diminishing individual liberty. The article on Wikipedia I quoted Jefferson from says the principles behind the birth of the Democratic-Republican Party, the corruption of banks and monied interests, led to the eventual founding of the Democratic Party by Andrew Jackson sometime between 1824 and 1828. (1828 was when Jackson throttled John Quincy Adams for the presidency.) Yet, I disagree with this analysis. I feel Jefferson today would be a Libertarian, and not either Republican or Democrat.
(Above: Rembrandt Peale portrait of Thomas Jefferson, circa 1805, while serving as president of the United States. Courtesy of Wikipedia.)
Gordon S. Wood, a noted historian on the War of Independence from 1775-1781 and the early American republic, made an interesting observation in one of his books I own but appear to have misplaced. He describes Jefferson's philosophies of a republican government as being the product of the times in which he lived and the scientific interests, the latter of which was influenced by Sir Issac Newton. Jefferson, according to Wood, considered social systems as analogous to physical systems. In the social world, Jefferson likens love to that of gravity in the physical world. People are naturally attracted to each other through love, but dependence corrupts this problem and leads to political problems. Wood argues that though the phrase "all men are created equal" was a common cliche in the late eighteenth century, Jefferson advanced this concept much further, holding that not only are all men created equal, they remain equal through their lives, equally capable of love as an attractive force. The people's level of dependence, according to Jefferson, makes them unequal in practice. By removing or preventing corrupting dependence, it would enable men to be equal in practice. Jefferson idealized a future where man would be free of dependence, particularly those of banks and royal influences. Within the coffers of these descriptions lie a partial secular explanation on the concepts liberty and the rights of man, love, how love results in dependence which in turn leads to great inequality and therefore greater involvement by political forces and banks in the lives of people, by now enslaved in their society.
A couple of noted Jefferson quotes to accompany this brief history of the philosophy of America's greatest revolutionary and political mind I present to you are as follows:
"I predict future happiness for Americans if they can prevent the government from wasting the labors of the people under the pretense of taking care of them."
And his 1802 comment:
"I believe that banking institutions are more dangerous to our liberties than standing armies. If the American people ever allow private banks to control the issue of their currency, first by inflation, then by deflation, the banks and corporations that will grow up around the banks will deprive the people of all property -- until their children wake up homeless on the continent their fathers conquered."
Jefferson distrusted organized religion. He wrote "The Statute of Virginia for Religious Freedom" to dissolve the existence of a state-recognized religion, which in Virginia was the Anglican Church, starting in 1777, and in 1786 the state Assembly enacted it as law. In it, he guaranteed freedom of religion to all faiths, including Catholics and Jews, as well as Protestants. This was a notable precursor to the Establishment Clause and the Free Exercise Clause of the First Amendment to the Constitution of the United States. In 1787, in an effort spearheaded by Jefferson protege and future president of the United States James Madison, the Constitution was written with the doctrine in place guaranteeing Americans a separation of church and state, and in 1791, the Bill of Rights, or the first ten amendments of the United States, had included within the First Amendment the right to freedom of religion.
Where this gets interesting is where all of this went wrong. The legal definition of marriage on one legal website I visited is as follows:
"A contract made in due form of law, by which a free man and a free woman reciprocally engage to live with each other during their joint lives, in the union which ought to exist between husband and wife. By the terms of free man and free woman are meant, not only are they free and not slaves, but also that they are clear of all bars to lawful marriage."
So, there is the legal definition. Part of it, as one notices, includes the term "slaves." This portion of the law is clearly obsolete since the passage of the Thirteenth Amendment occurred on April 8,1864 during the Civil War. But if one looks at another part of the website's description of the legal definition, it also says this:
"Generally, all persons who are of sound mind, and have arrived at years of maturity, are able to contract marriage."
So what does this mean? Well, I looked further down this legal webpage's list of descriptions, and I found everything from the prohibiting of consanquinous marriage (marriage between family members) since such marriages are against nature in some states (though the state of Tennessee legally allows first cousins to marry while the states of Kentucky and West Virginia do not), how such states as Pennsylvania have a legal statute against two consenting adults who commit adultery marrying legally, how marriage is a contract lasting until death except for when cases of bigamy arise that question the validity of said marriage(s), and how marriage vests in the husband all personal property of the wife. But not one thing is mentioned about same-sex marriage.
I postulate that same-sex marriage was never a consideration in the formative years of the United States because it came into conflict with the colonial governments, which were heavily imbued with whatever Christian religious institution was prevalent . The United States was founded by English settlers during the seventeenth century, first in Jamestown in 1607 and later in Plymouth in 1620, on the grounds of what historians like to refer to as the "Three G's": God, gold, and glory. And it is important to note how most settlements in Puritan New England were founded based on the desire to separate from the prevalent legal religious institution of the founders' prior to habitation. In Massachusetts, the Protestant Christian denomination was the Congregational Church; in Virginia and most of the South, it would be the Church of England since those colonies were settled by English entrepreneurs looking to make money from the cultivation of tobacco; in Maryland, it was Roman Catholicism; in Pennsylvania, the Quaker William Penn settled Philadelphia in 1682. So each colony had its own religion that permeated through the legal codes.
In 1787, the Constitution was ratified, and the separation of church and state was part-and-parcel of the supreme law of the land. And in 1791, the First Amendment was passed guaranteeing people the right to freedom of religion. Unfortunately, as I showed you with the legal definition of marriage, there is a heavy Judeo-Christian influence imbued within it. The Bible states that marriage is a holy covenant between a man and woman. It also says, to paraphrase Scripture, a man lying with another man is considered an "abomination." Clearly, our Founding Fathers in the late eighteenth century were still heavily influenced by their ancestors' religious influences despite the very laws they wrote into the legal codes. They did not adhere to the laws dictated by the Constitution as a result. This same pestilence resides within our political leaders today, with Democrats wanting to extract the tax exempt status of religious bodies who fail to recognize same-sex marriages, while the Republicans have attempted to force its will on government policy by attempts at legally banning those same marriages. All this boils down to the legal definition of marriage and the biblical allusion behind it.
If I were Sen. Rand Paul (R - KY), I would do the following: I would draw up a bill proposing a constitutional amendment that would, in essence and practice, dissolve the present Christianized-definition of marriage, and in its place redefine what kind of union to which all people of any sexual orientation have the right. All people should have the legal right to a government-recognized civil union free and unfettered, with all the legal benefits that men and women today enjoy who are legally-bound in a contract of marriage. As you and the law professors at Pepperdine University correctly stated, this would not take away the right for people to be married in a religious ceremony as prescribed by their religion, as people are not legally married during a ceremony but rather are when they sign their legal contract pronouncing them man and wife. Doing this would solve two parts to one conundrum: it would adhere to the Constitution's legal doctrine separating church and state, and it would preserve clergymen's rights to preach and practice their faiths as prescribed by the First Amendment in the Bill of Rights. I believe going through the U.S. Supreme Court to make a decision is taking the wrong avenue because it is not the High Court's place to legislate on any matter, whether you are talking Roe v. Wade or the two cases in 1962 and 1963 that struck down mandatory biblical recitations and prayer in public schools. Too often in U.S. history we have had justices in the Supreme Court who served as activists and quasi-legislators rather than figures who meticulously and rigorously interpret the Constitution. This practice must end, starting with the case(s) that are before the U.S. Supreme Court the past day or so.
Tom, I hope you found this interesting and insightful. You know how I enjoy deriving my opinions on what history tells us, and of course my considerable knowledge of the philosophy behind the concepts in the Constitution and Western political philosophy since the time of Socrates, Plato, and Aristotle. While our Founding Fathers were brilliant men, they were not without their faults, and the biggest fault they had was not learning from their Puritan forefathers that leaving England because their Congregationalist religious practices was in direct conflict with those of the Church of England did not mean it was just to set up a colony in the New World based on another established religion, their own; after all, Roger Williams settled Rhode Island and Anne Hutchinson Connecticut because they were ousted from the Massachusetts Bay Colony for failing to comply with the laws imbued by the Congregationalist teachings. For over 400 years, Americans, whether they were colonists or citizens from 1776 on in the United States, have violated the natural right to be free and unabated of a government influenced heavily by religion, and of course the right to practice the religion as prescribed dogmatically. French political philosopher Jean Jacques Rousseau once wrote the following infamous quote in his most famous work titled "The Social Contract" that has influenced liberal and conservative statists equally, though both sides would argue against that point:
(Above: Portrait by Maurice Quentin de La Tour of 18th Century philosophe Jean Jacques Rousseau, author of The Social Contract, Discourse on the Origin of Inequality, Reveries of a Solitary Walker, and Julie, or the New Heloise. Courtesy of Wikipedia.)
"...In order then that the social compact may not be an empty formula, it tacitly includes the undertaking, which alone can give force to the rest, that whoever refuses to obey the general will shall be compelled to do so by the whole body. THIS MEANS NOTHING LESS THAN HE WILL BE FORCED TO BE FREE; FOR THIS IS THE CONDITION WHICH, BY GIVING EACH CITIZEN TO HIS COUNTRY, SECURES HIM AGAINST ALL PERSONAL DEPENDENCE."
We are dangerously meandering down this road, and if we fail to reclaim our liberties such as the separation of church and state and freedom of religion, we as a society will be undone!
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