The Constitutionality of Traditional Marriage

Abstract
In United States v. Windsor and Hollingsworth v. Perry, the Supreme Court will consider the constitutionality of government policies that reflect traditional marriage—that is, marriage as a union between one man and one woman. If the Court does not dismiss these cases on jurisdictional grounds, it should act to uphold traditional marriage. Nothing in the Court’s jurisprudence suggests that the right of same-sex couples to have their relationships recognized as marriages is so fundamental as to be protected by the Constitution’s Due Process Clause. Nor does the Equal Protection Clause require that result, given the societal purpose and value of marriage as furthering procreation and child-rearing. Because the Constitution does not speak to this question, it is one that is left to ordinary political processes, not to judicial fiat.

Commentary From the Blogger: The Supreme Court heard arguments on DOMA and Prop 8, and millions of Americans are awaiting the decision. My first impression of the argument brought in front of the court by the defenders of traditional marriage, was that it in essence, absolutely ridiculous. Nothing in their argument of whether or not same-sex marriage couples could have children could not also apply to heterosexual couples who cannot have biological children.

Our founding documents are wholly based in Natural Law and the English common law, which of course, would have found the argument for same-sex marriage absolutely absurd. No one is willing to touch this inconvenient truth, but it is in fact, the truth of it all. We talk about original intent, but we do so with a degree of ignorance.

If we were somehow able to resurrect the Founding Fathers in order to consult them on this issue, they would asked to promptly be put back in the ground. We have this modern day arrogance that tells us that homosexuality is unique to our time. Our Founding Fathers contended with homosexuality, and so did Jesus Christ for that matter. Britain, and Europe as a whole, was becoming morally bankrupt and opposed to the tenets of Natural Law – the same is true of the days of Jesus, when the Roman republic was losing its virtue and quickly had become corrupt.

Agree or not, this is the historical record regarding the issue of homosexual relations, and the founders had intended this to be a different civilization; one in which, virtue and morality served as a guide to policy in both the public and private realms. “Progress” is, in reality, quite regressive more often than not.

Read Full Heritage Brief By John C. Eastman