U.S. Supreme Court: BOWERS v. HARDWICK, 478 U.S. 186 (1986)

The quick background of this case is Hardwick worked at a gay bar, and one night while taking a break outside the bar, a cop began questioning him after he threw a beer bottle away in the garbage. The officer picked him up, questioned him, than gave him a ticket for drinking in public. For one reason or another, Hardwick missed the court date, and the officer obtained an arrest warrant. On a second attempt to pick Hardwick up, the officer walked into Hardwick's residence and found him in a sexual act with another man. He was prosecuted under Georgia's sex statues. The case was heard by the Supreme Court, which ruled that in such instances people do not have freedom of privacy and upheld Georgia's sex statues. In the opinion of the Court:

"The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of the many States that still make such conduct illegal and have done so for a very long time."

and

"To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching."

22 Thou shalt not lie with mankind, as with womankind: it is abomination.

"The rationalization of one sexual deviance (homosexuality) can easily extend to the rationalization for another (pedophilia)."

"A hold over from the time of Henry VIII, sodomy laws have been overturned in 37 states since the late 1960's. As Republican Gov. Jane Hall said as she signed a bill in 2001 to overturn Arizona's sodomy law: 'At the end of the day, I returned to one of my most basic beliefs about government: It does not belong in our private lives.'"

2 We believe that no government can exist in peace, except such laws are framed and held inviolate as will secure to each individual the free exercise of conscience, the right and control of property, and the protection of life.

4 We believe that religion is instituted of God; and that men are amenable to him, and to him only, for the exercise of it, unless their religious opinions prompt them to infringe upon the rights and liberties of others; but we do not believe that human law has a right to interfere in prescribing rules of worship to bind the consciences of men, nor dictate forms for public or private devotion; that the civil magistrate should restrain crime, but never control conscience; should punish guilt, but never suppress the freedom of the soul.

Sexual Orientation and the Law

"The tradition relied on by the majority does not justify singling out same-sex sodomy for special treatment."

Rainbow Rights

"Personal rights to privacy, sexual intimacy, marriage, and family intimacy have been recognized as fundamental. The task for lesbian and gay rights litigators is to convince the courts that gay privacy, intimacy, and family relationships are sufficiently similar to nongay ones. To make these arguments requires a direct challenge to Bowers v. Hardwick since that case held that gay sexual intimacy was not protected. Given the Court's reluctance to recognize new suspect classifications, this latter approach to equal protection litigation seems most promising."

I have to admit the arguments of the fours dissenting Supreme Court Justices in BOWERS vs. HARDWICK seemed much more logical then Court's decision, which relied on "millennia of moral teaching." Couldn't that argument have been used for slavery? And as for pedophilia being protected under the same laws that allow homosexuality, couldn't laws concerning consensual age be used to protect innocent children until they are of moral maturity to exercise their own free agency? I think so.

In response to the pro side, I think very nearly agree. I think that American government today is different than Judaic law in that church is separate from state, something I think preferable in this day and time (see D&C 134). So the notion that millennia old morals can be sighted as justification doesn't sit well with my limited understanding of the Constitution and American ideals. While I am vehemently disgusted, bewildered and appalled at the practice of homosexuality (though I espouse the kind and fair treatment of homosexuals), I don't think that there is sufficient evidence to show that government can regulate sexual intimacy.

I do NOT, on the other hand, agree that marriage or adoption rights should be granted to homosexuals.

Marriage, unlike private acts between consenting adults, is a public institution. It is supported and recognized by federal, state, and other organizations as an entity in and of itself. The definition of marriage has no Constitutional background. While most religions have very strong views about the nature of religion, what is going to be recognized as marriage is up to the people of this country. There is no Constitutional support for either side of the issue, because of that, the voice of the people need to make themselves heard. And what is the voice of the people?


WIRTHLIN POLL

62% of Americans polled believe that marriage should be Constitutionally limited between a man and a woman only. (Sign my petition in favor of the Federal Marriage Amendment)

Marriage between a man and a woman serves as the very foundation of society. The Supreme Court has had frequent opportunities to expound upon the fundamental importance of marriage to society. Over a century ago, the United States Supreme Court called marriage �the most important relation in life�having more to do with the morals and civilization of a people than any other institution�� More recently, the Court described marriage as an �association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects�� But, however ornate the rhetoric, the Supreme Court�s discussions of marriage emphasize again and again a surpassingly important reality that (quite curiously) is often overlooked in the modern debates surrounding same-sex marriage: the unquestionable biological and historical relationship between marriage, procreation and child-rearing.

Many Defence of Marriage Acts (DOMA) have been passed at state levels, and on 9/21/1996 DOMA H.R.3396 became Public Law No: 104-199. The national act reads as follows:

AN ACT

To define and protect the institution of marriage.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the `Defense of Marriage Act'.
SEC. 2. POWERS RESERVED TO THE STATES.
(a) IN GENERAL- Chapter 115 of title 28, United States Code, is amended by adding after section 1738B the following:
`Sec. 1738C. Certain acts, records, and proceedings and the effect thereof `
No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.'.
(b) CLERICAL AMENDMENT- The table of sections at the beginning of chapter 115 of title 28, United States Code, is amended by inserting after the item relating to section 1738B the following new item: `1738C. Certain acts, records, and proceedings and the effect thereof.'.
SEC. 3. DEFINITION OF MARRIAGE.
(a) IN GENERAL- Chapter 1 of title 1, United States Code, is amended by adding at the end the following:
`Sec. 7. Definition of `marriage' and `spouse'
`In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, 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.'. (b) CLERICAL AMENDMENT- The table of sections at the beginning of chapter 1 of title 1, United States Code, is amended by inserting after the item relating to section 6 the following new item:
`7. Definition of `marriage' and `spouse'.'.
Passed the House of Representatives July 12, 1996.
Attest:
Clerk.

You can find more information about the act here.

FEDERAL MARRIAGE AMENDMENT

Marriage in the United States shall consist only of the union of a man and a woman. Neither this constitution or the constitution of any state, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.

Because marriage between a man and a woman is the basic unit of society, and because this definition doesn't rest on any Constitutional fair treatment or inclusion, but on sacred, defined notions about marriage that rely on public sentiment, we the people need to make our voices heard on this issue.

(Sign my petition in favor of the Federal Marriage Amendment)