A Thought-Provoking Comment regarding Gay “Marriage” from a Reader of This Blog


The Founding Fathers, confirming their vote to enshrine gay marriage as an implicit right written in invisible ink between the lines of the penumbra of the Constitution



I was so impressed with this comment by Raymond Takashi Swenson on a previous blog entry of mine that, with his permission, I’m reproducing it here in order to give it greater prominence:


The “precautionary principle” is the watchword of the international environmental movement, the ethical standard, which many environmentalists seek to enact into law, that the burden of proof is on innovators to prove that their proposals will NOT have a negative impact on the environment. The classic embodiment of this principle in American environmental law is the National Environmental Policy Act, which prohibits all Federal agencies from undertaking any action until they have thoroughly considered all the alternative means of accomplishing their public policy goal, and assessing the impacts on “the human environment” of all the proposals and their alternatives.


If the US Department of Agriculture proposed to allow the commercial distribution of a genetically modified animal that bore the risk of significantly altering the sexual behavior of 5% of its species, there would be immediate action seeking a court injunction against that action until all the impacts of that gene mod had been assessed, not only short term but also long term, and also cumulatively with other actions being undertaken by the government which might synergistically amplify those impacts.


Yet here we are, with the President of the United States proposing we conduct an experiment on our human society, and in particular the children who are raised in our families, without even a formal attempt to ask the questions about what impacts this could have on children, families, and society. He has spent far more time delaying the utterly conventional activity of laying an oil pipeline across the central US than he has in considering these questions.


Same sex marriage is indisputably an innovation, something never on the horizon of the Congress or the State legislatures as they ratified the Constitution and its various amendments. To claim that some part of the Constitution requires all states and all local governments, let alone the Federal government, to not only give legal recognition to same sex marriage, and also to punish people who speak against it or demur from supporting it with their labor, will be seen as an utter lie, a lie that is owed no allegiance by any American. If there are issues of equity and fairness, let them be considered by Congress and state legislatures, and protect the most fundamental right under the Constitution, of the people to govern themselves, which the entire structure is designed to preserve. To tell the people that their votes count for nothing against the decision of 5 of 9 lawyers, is to create the kind of tyranny that the Declaration of Independence was intended to eradicate.


The Supreme Court is a poor vehicle for making fundamental decisions of this kind, because the assessment of the impacts of such a decision are utterly beyond the expertise and capabilities of the lawyers who sit on the court. The process they conduct is ill suited to making that kind of decision. All of the many interests of all of the people who would be affected by such a ruling cannot be properly considered in a few hundred pages of briefs and a few hours of oral argument. And the ability to make corrections based on unforeseen consequences of the decision is not part of the process.


Their injunction is to follow the Constitution as law, not a blank slate for them to write on. Their authority is derived from the Constitution, from the myriad agreements it represents of elected representatives of the citizens, and to the extent they depart from it and innovate, there is no basis for the citizenry to take their word seriously, to obey.


It is absolutely clear that nothing in the original Constitution, or in its amendments since, including the ones enacted after the Civil War, ever contemplated the intent to alter the historical meaning of marriage to include homosexual relations. The assertion of same-sex marriage advocates, that any consensual relationship must be afforded the same legal recognition and enforcement by government as marriage, was clearly not the rule when the Supreme Court decided the Reynolds case, which affirmed the Edmunds-Tucker Act and its criminalization of polygamous marriage, at a time when the 14th Amendment was already part of the Constitution, created in the ascendancy of the Republican Party whose platform had considered slavery and polygamy to be equally barbaric. The rationale for same-sex marriage is also a rationale for polygamy and the government recognition of any other kind of sexual relationship, a point which was made by the dissenting justices on the California Supreme Court in the decision which Proposition 8 overturned. The term “LGBT Rights” includes Bisexuals, who could demand that they be allowed to have a spouse of each gender.


Should the majority of the Supreme Court issue a ruling that purports to overturn the laws and constitutions in the majority of states, which prohibit legal recognition of same sex marriage, the court could face open rebellion from many of those states. The vast majority of Senators and Congressmen represent those states, and know they will never be reelected if they allow Federal sanctions to be used to enforce such a judgment. And once people realized that they could defy tyrannical rulings by the Federal courts, their respect for any other ruling will be lost. The broad consensus that is the real source of the power of the Supreme Court will be broken. Such a ruling will not “solve” any problem, but will lead to judicial chaos. It will be a suicidal gesture by the Supreme Court.



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  • http://adventures-in-mormonism.com bfwebster

    I believe Orson Scott Card said the same thing (in about two or three sentences) quite a few years ago.

  • Brandon

    If I thought that a SCOTUS ruling in favor of gay marriage actually would provoke a revolution of at least some of the states, i.e. a secessionist movement, I think I would actually be in favor of such a ruling. It’s sad that this might be what it takes for the peoples of the several States to finally stand up and reclaim their rights.

  • Andrew Smith

    I thought this article (via Junior Ganymede, http://www.jrganymede.com/) was of particular interest, especially those portions on the state of research in the field and ideological acceptance of ‘facts’ without critical evaluation, to the point of demanding conformity with an ‘established’ (albeit scientific unsupported) belief/neo-orthodoxy.

  • Lucy Mcgee

    With respect Mr. Swenson, your inclusion of the paragraph regarding the USDA genetic modification of animals is quite strange, and far outside the context of human lives and emotions involved in marriage.

    Same sex couples wanting to have the same marital rights as heterosexual couples has no doubt been on the minds of those parties since time immemorial. Laws have changed. Society has changed. Eventually, the most skilled lawyers and pundits and their best arguments against majority opinion will become irrelevant.

    Same sex couples enter into these bonds to strengthen society not weaken it. If your religious scriptures and leaders dictate that you follow their teachings and you decide to discriminate against your fellow travelers, then fine, that’s your prerogative. However, you are in the minority. Today, 70+ percent of those born after 1981 have no problem with same sex marriage and the families they raise. And given that we aren’t getting any younger, it seems quite probable that the majority, in this important civil question, will soon triumph, as they should.

    • danpeterson

      Your argument seems to boil down to two fundamental claims, Lucy McGee:

      1) Objection to same-sex marriage can only arise on religious grounds, and is thus irrational.

      2) Support for same-sex marriage is growing, and particularly among the young — or, alternatively, because older people are dying off.

      The first claim is false. A number of secular arguments against same-sex marriage are now on public offer. I’ve linked to expressions of some of them over the past few days.

      The second claim is extremely problematic. It’s never a sound argument to holders of a minority opinion to say that, because the majority disagrees with them, they should jettison their view. Hitler was popular in Austria, but those who opposed the Anschluss were right to oppose it. Slavery and discrimination were presumably popular, in their respective eras, in the American South, but those who fought against them were right to do so. The rightness or wrongness of abortion, likewise, has absolutely nothing to do with the preferences of 50%+1 of the population.

      And please pardon me if I don’t defer to the presumption that the younger generation is always more intelligent and morally superior to its elders. The Hitler Youth, the Red Guard in Mao’s Cultural Revolution, the youthful soldiers of the Khmer Rouge, the residents of Haight-Ashbury in the late 1960s — none of these do much to support that prejudice.

      And, finally, there is considerable evidence to show that your claim that “Same sex couples enter into these bonds to strengthen society not weaken it” is, at best, not always true. (I’ve provided links to some of it.)

      • Collin

        I would add that if there is a God, and He wants what is best for us, and if He has said that gay marriage is wrong, then religious arguments are the best arguments.

      • Lucy Mcgee

        Please note that I did not write that objection to same-sex marriage can arise only on religious grounds. A recent Pew Forum study shows that people unaffiliated regarding religion are among the 77% that favor same-sex marriage as do 72% of liberals, 59% of Democrats, and 51% of women. Those supporting same sex marriage among the white evangelical Protestant group was 24%. The important takeaway is that every group’s favor of same sex marriage in this decade long study is increasing (the chart line is moving from lower left to upper right). If same sex marriage approval was a stock, you’d be a happy camper.

        I also didn’t write that the younger generation is always more intelligent or morally superior. I was simply stating that those that discriminate against same sex marriage are losing ground.

        I find it interesting that you would compare the young people conscripted by horrid totalitarian despots during a time of war as being in the same ballpark as our youth today regarding either intelligence or morality. The young people living within these regimes were being subjected to totalitarian propaganda on a massive scale with little or no choice other than conformity or death.

        • Collin

          It is nothing like a totalitarian regime, but young people are facing a lot of peer pressure. No one wants to be called a bigot.

  • http://www.sixteensmallstones.org J. Max Wilson

    Good insights from Raymond Takashi Swenson. Thanks, Brother Peterson.

    Marriage redefinition is a serious matter with far reaching consequences. For those unfamiliar with non-religious arguments for retaining the traditional definition of marriage, the articles on the subject from the respectable folks at The Public Discourse are excellent:


  • JL

    When we have clear thinkers such as Mr. Swenson and others (including Dan) who have so eloquently spoken out on this issue, it is a shame we have an immoral majority who support the deluded group we have in D.C.

    My sentiments are with Brandon.

    And Dan, you offered a smashing rebuttal to Lucy (I would have expected no less).

  • http://www.bycommonconsent.com Aaron Brown
    • danpeterson

      I haven’t had a chance to read it yet, but Nate is always worth reading.

  • http://www.sixteensmallstones.org J. Max Wilson

    I read Nate Oman’s essay this morning, and as usual he is very thoughtful and insightful. But in the end I felt he ended up with a self-contradicting conclusion: he wants same-sex marriage to encourage strong marriages and chastity among homosexuals.

    The hallmarks of strong marriage and chastity: Fidelity, exclusivity, and permanence are primarily necessary to marriage because it is ordered toward responsible procreation and the flourishing of children. Society has an interest in the fidelity and permanence of sexual partners because complementary sexual activity has a natural relationship to and effect on children.

    Once complementarity and order toward procreation are defined out of marriage, and it is redefined instead as a union ordered toward adult companionship, distinguished from friendship mostly by intensity and mutual sexual pleasure, then there are few compelling secular reasons remaining for marriage to require fidelity, exclusivity, or relative permanence.

    To think that society will somehow continue to encourage fidelity and impose social shame on infidelity when the relationship has been bereft by very definition of its natural reasons for permanence, exclusivity, and fidelity is quite a gamble. Good luck with that!

    “Marriage is society’s least restrictive means of ensuring the well-being of children.”

    See: http://www.heritage.org/research/reports/2013/03/redefining-marriage-eroding-marital-norms-and-other-impact

  • http://dadsbookreviews.blogspot.com/ D. Chris Albright

    I love this idea of the precautionary principle applying to this issue and couldn’t agree more. Governments should operate by the same principle as doctors: first, do no harm.
    As a simple matter of logic, no law can grant same-sex couples access to the traditionally defined institution of male-female marriage, and to argue that they should be allowed access to that institution is a non-sequitur. What the law CAN do is to create an entirely new institution, the union of any two-persons, call that institution by the same name as the old institution such that it displaces the old institution, and then give both same-sex couples and opposite-sex couples access to this newly invented construct. This new artificial construct is based on an entirely different premise than the original institution of marriage (the right of any adult to form whatever type of family the adult wants displacing the attempt to link every child, as far as possible, to its own mother and father) such that the displacement of the old institution with the new institution is no small thing.
    We know the track record of the pre-political institution of traditionally defined male-female marriage in allowing the vast majority of children equality of access to the privilege of knowing and loving and bonding with both of the parents who gave them life, in sustaining viable societies, and in successfully completing the difficult task of raising to viable adulthood and acclimating and acculturating a newborn barbarian horde every twenty years. We know the track record of traditionally defined marriage in socializing and civilizing young men by teaching them that fathers matter in the lives of their children (which principle (a) requires societal constructs for its promotion in ways that motherhood, for obvious biological reasons, does not-and (b) will become a forbidden idea in a society embracing any-two persons marriage). We have no knowledge of what type of society the proposed new and artificial construct, marriage as the union of any two persons, will ultimately lead to.
    The 20th Century saw many attempts by revolutionary governments with supposedly more enlightened ideas than their forbears, from Stalin’s Soviet Union to Pol Pot’s Cambodia, to redefine or do away with longstanding social institutions (private property for instance) in favor of artificial creations of the State, which were supposedly more fair, equitable, scientific, or progressive. The implementation of almost all of those ideas were unmitigated disasters which led to human suffering on scales never before imagined. Indeed, the history of the 20th Century can be read as a long and bloody lesson in the validity of Locke’s ideas supporting the need to maintain and preserve traditional and organically developed societal institutions, as against Rousseau’s theories that modern men could intellectually manufacture new and better societal institutions from scratch. (See also the outcome of the American revolution, grounded in an effort to restore pre-existing common law rights the revolutionaries believed were being subverted, versus the outcome of the French Revolution, which was grounded in the belief that all existing societal institutions could be thrown out, and society restarted from scratch, and which led, in Margaret Thatcher’s phrase, to a pile of headless corpses with a dictator standing on top.) The United States of America largely escaped the social upheavals of the 20th Century which certain other nations experienced as they attempted to redefine social institutions from scratch. We have, however, over the past 50 years, experienced a social revolution in our standards concerning socially acceptable extramarital sexual behavior and in the acceptance and then the celebration of a wider diversity of family forms. The outcome has not been good for the nation’s most vulnerable class: children. It is time to try to reverse these trends, not accelerate them.

    • http://nathanrichardson.com Nathan000000

      Chris, that was a really good explanation. Publish that somewhere as a blog post, OK?

      • Zee DM

        Here here! I agree with Nathanooooo. I especially appreciate the first paragraph. It explains well what is meant when people talk about ‘redefining marriage’.

  • danpeterson

    Chris: May I run your comment as a blog entry?

  • Onijitsu

    I think the ultimate point is, Ms. McGee, that, in order to provide “equal rights” to gay couples (in a way which has only been sought in the last 10-20 years), “Progressives” are trying to not just deny, but negate (after the fact) the right to vote for millions of Citizens.

    And then what will we have? A Democracy? Certainly not. A Republic? Nope. Simply, a Dictatorship.

    • danpeterson

      Good point.

  • DavidH

    I don’t think the Constitution requires state recognition of same sex marriage. But that is a very different question from whether state legislatures should extend the benefits and responsibilities of marriage to committed same sex couples. One can favor one without favoring the other.

    • joeswick

      I agree. I don’t think that the Supreme Court is going to require state recognition — but is much more likely to find in favor or extending certain legal protections and entitlements to same-sex couples.

      And Dan: I believe that Reynolds was an over-reaching of federal authority, and will eventually be (rightly) overturned. I also find it puzzling that Latter-day Saints –those on the receiving-end of this particular abusive pointy stick– would find it entirely okay to use that same stick to poke at others when it suits them.

  • joeswick

    DChris: “As a simple matter of logic, no law can grant same-sex couples access to the traditionally defined institution of male-female marriage, and to argue that they should be allowed access to that institution is a non-sequitur. What the law CAN do is to create an entirely new institution, the union of any two-persons, call that institution by the same name as the old institution such that it displaces the old institution, and then give both same-sex couples and opposite-sex couples access to this newly invented construct. ”

    Rather, what the law CAN do is recognize the equal rights of citizens to associate and contract. The government shouldn’t be involved in the marriage business, except for the enforcement of its contractual aspects.

    What actually constitutes a “marriage” in the sight of God is for each religion to decide and to ratify/legitimize by whatever ceremonies seem appropriate. Here, there may also be some diversity, as religions do not always agree on what does and does not constitute a valid union in the sight of God. Not everyone is a Muslim, after all.

  • Guy Briggs

    There are laws – at the municipal level, if not also at the state and federal level – that require a certain number of parking spaces near the entrances of public buildings, designated as “handicapped parking.” These laws are, according to the do-gooders who enacted them, for the good of society.

    As an individual who is deeply concerned about civil liberties, I must state my belief that such laws violate the “equal protection” clause of the Constitution.

    I think that we should, therefore, re-define “handicapped” to include persons who God made a little bit different – that is, perfectly ambulatory – so that all can enjoy the right and privilege of (so-called) Princess Parking.

    After all, I love parking close to the entrance as much as any handicapped person!