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VOL. 13, NO. 3March 31, 2011
America's Culture War and How to Fight It:
Marriage, Morality, and the Courts

America is engulfed in the flames of a Culture War, as we have asserted in recent Briefings. The current attack on the federal Defense of Marriage Act (DOMA) by Humanistic forces is a renewed explosion on one of the hottest fronts in this War of Worldviews — the battle against marriage and morality as defined throughout the history of Western civilization, rooted in, and permeated by, Judeo-Christian perspectives and principles. Here, as throughout the Culture War, America's courts, led by the U. S. Supreme Court, have been weapons of mass destruction, attacking our Constitution, trying to beat it into a Humanistic document, and then use the reconstructed Constitution to beat our culture into a Humanistic society.

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Now, the U. S. Congress is being recruited by Humanists as their allies in the battle against marriage and morality. Earlier this month, Democrats in both houses of Congress introduced bills to repeal DOMA. Meanwhile, Republicans in Congress are mounting a defense of DOMA where the Obama administration has withdrawn its support of the law in pending court cases challenging the law.

This fierce conflict highlights the fundamental importance to America of an area of life and thought we discussed in a recent Court Watch Briefing — the field of "axiology." This pretentiously learned-sounding term has a simple meaning — the study of values/principles. In the DOMA battle, are there absolute moral principles binding our nation (or all nations) and a fixed meaning of "marriage" from which our nation (or any nation) can depart without fatally wounding itself? In this Briefing, we offer an initial analysis of some of the major defenses of Judeo-Christian marriage and morality — defense we Constitutionalists must be prepared to mount, perhaps as never before, in America's Culture War.

We must begin by understanding the fairly straightforward history of DOMA. The law passed overwhelmingly in both Houses of Congress in 1996 and was signed into law by President Bill Clinton. Section 2 of DOMA is the "Full Faith and Credit" section, which protects any state from having to recognize a same-sex marriage performed in another state. Section 3 of DOMA defines "marriage" and "spouse" for purposes of federal law. ". . . the word marriage means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife."

The U. S. Supreme Court has never heard a case challenging DOMA and has a record of only two recent decisions involving homosexual conduct. The first, a pro-marriage, pro-morality ruling, was Bowers v. Hardwick (1986), in which the Supremes upheld a Georgia sodomy law. The second was Lawrence v. Texas (2003), where the Court threw out the Texas sodomy law and, in effect the remaining state sodomy laws — a total of thirteen state laws felt the Supremes' axe in Lawrence. The "Sodomy Six" majority in Lawrence (Joseph Farah's term for the Court majority) also categorically overturned the Bowers ruling. The Court's ruling and its reasoning are so radically anti-marriage/morality as to constitute a cultural and constitutional tsunami. Lawrence is arguably the worst decision in American constitutional law, perhaps equaled only by Roe v. Wade (and, declares one scholar, Planned Parenthood of Southeastern Pennsylvania v. Casey, which stoutly and psychotically refused to overrule Roe).

While both Lawrence and Bowers concerned state law, and the attack on DOMA targets federal law, many of the fatal flaws of the Lawrence decision afflict today's anti-DOMA arguments. In this Briefing, we offer a very abbreviated rebuttal of the most popular attack mounted by Humanist/Reconstructionist forces throughout a large span of years in debates over law and morality. We are again being pounded by the anti-DOMA camp with the argument that "you can't legislate morality." Here are two initial rebuttals.

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  1. Legislation inevitably embodies moral choices. This truth is cogently expressed by a Kentucky Supreme Court Justice in the 1993 state case of Kentucky v. Wasson: "It is foolish and fruitless to ignore morality in our society and in our governmental function. Every political decision of consequence reflects a moral judgment. In response to the oft-heard claim that you can't legislate morality, it needs to be said that legislation is always based on someone's morality. The claim that we cannot legislate morality is a deception intended to exclude from the democratic process those citizens [i.e., we Constitutionalists] who frankly acknowledge that their motivation is moral in nature."

  2. Law's concern with the moral well-being of society is a distinguishing feature of Western civilization. Aristotle recognized this fact over 2,300 years ago, declaring that "virtue must be the care of a state which is truly so called." This "moral guardian role" of law is central to the Western tradition. As Professor Robert George explains, "It is, above all, the belief that law and politics are rightly concerned with the moral well-being of members of political communities that distinguishes the central [Western] tradition from its principal rivals."

In the midst of the radicals' attack on DOMA, the latest judicial assault on our Constitution and culture, we would do well to reflect on the words of the great foreign observer of American affairs, Alexis de Tocqueville. In his brilliant work of the 1830s, Democracy in America, he observed,

In the United States the sovereign authority is religious, . . . there is no country in the world where the Christian religion retains a greater influence over the souls of men than in America, and there can be no greater proof of its utility and of its conformity to human nature than that its influence is powerfully felt over the most enlightened and free nation of the earth.


For more information and insight, order our

  • "Basic Blackstone" — our premier printed piece which analyzes and refutes Lawrence and other of the courts' worst decisions;
  • "Blackstone Blitz" — a popular multi-media presentation exposing the Culture War and the fundamental issues over which it is being fought
BlackstoneInstitute.org

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