KEYES: Pence’s Stand for Indiana’s RFRA- What is Really at Stake?
These days it is almost impossible to take anything that happens in our politics (i.e., the sphere of life in which we are supposed to think and act as members of the sovereign body of the people) at face value.
Gov. Mike Pence is being lionized by some for doing what the U.S. Constitution required him to do: sign into law the Religious Freedom Restoration Act, passed by the Indiana legislature, and intended to reinforce the free exercise of religion in Indiana. I say that the U.S. Constitution requires him to do so because the 14th Amendment clearly says that “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” The Ninth Amendment further states that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
By using the word “retained” the Ninth Amendment makes it clear that the rights referred to are antecedent rights, possessed by the people before, by their collective will, they ordain and establish the Constitution. Now, the organic law of the United States includes both the U.S. Constitution and the Declaration of Independence. In words well known that resound throughout the history of the United States, the Declaration articulates the understanding of rights that informs the Constitution’s use of the word when it observes “that all men are created equal and endowed by their Creator with certain unalienable rights.”
The Declaration makes it clear that those unalienable rights include but are not limited to “life, liberty and the pursuit of happiness.” The word “unalienable” makes it clear that they are such as to be inseparable from the very nature of humanity, and so cannot be given or taken away without degrading it. So when we “deny or disparage” (belittle, denigrate, lower in rank or reputation) the exercise of such rights, we impair humanity itself.
In recent years, some judges and justices in the U.S. judicial branch have construed the Constitution so as to fabricate so-called “homosexual marriage rights”. In doing so they have supported the demand that same sex couplings and those of people of different sexes be held in the same regard under the law, and be treated the same when it comes to the legal institution of marriage. When regarded strictly in term of the activities of individuals, this may appear plausible to some people. But as an artifact of just sovereign power, the law cannot be exclusively concerned with individuals when it deals with matters that affect the very nature of humanity itself. In that respect, is there a more obviously natural common good than the perpetuation of humanity as such?
There can be no dispute about the fact that, before some judges and justices in the U.S. judiciary launched their insurrection against their will, the people of the United States defined marriage in terms of the natural common good. They respected, in principle, that institution’s special (i.e., of or related to the species) purpose in relation to the survival of the human race. In this respect, marriage exactly corresponds to an activity that is existentially inseparable from the very nature of humanity, in the most common and concrete sense of the term. Thus understood, marriage is self-evidently an unalienable right, sourced in the authority of the Creator, and therefore antecedent to any and all humanly constructed rights, whatever they may be.
The organic law of the United States acknowledges the authority of the Creator as the primordial and highest authority for the exercise of rights, which is to say, for the lawful permission to do what it is right to do. Right is not sourced in human will, but in the will of the Creator. It is, as President Lincoln put it, “right, as God gives us to see the right.” Unless we mean to deny that it is right, in principle, to perpetuate the human species the right of marriage, defined in terms of that purpose, cannot be denied or disparaged by merely human laws and judgments, including the Constitution of the United States.
The Constitution’s Ninth Amendment simply acknowledges, in a general way, what the unalienable right of marriage makes manifest in a concrete and specific way. The judges and justices who assert and demand enforcement of “marriage equality” for same sex couplings therefore face the burden of proving that, like the marriage couplings of men with women, same sex couplings are essential to the concrete perpetuation of the species as a whole. Given that same sex couplings are, as such, barren, this burden appears, on the face of it, impossible to sustain; and of course the U.S. courts have not done so.
No amount of reasoning as to the subjective gratification individuals derive from the spiritual, emotional or physical aspect of same sex couplings is relevant to this burden of proof. It has to do with humanity as a concrete fact, not as a subjective abstraction. This explains the general prejudice of mankind against the institutionalization of such couplings. For if made into a law for all, over time the concrete material manifestation of humanity would cease to exist.
This large-scale extinction of humanity now seems to be an acceptable goal for some elements of what I call the elitist faction. For the sake of the earth, of ecology, of environmental balance and purity, they seem to have conceived a righteous hatred against the existence of the human species, and therefore against its procreation. This may seem right according to their will. But the standard of right on which lawfulness depends, according to the declaration and ordinance by which the people of the United States constitute a nation, is God’s will, not theirs.
Did Indiana Gov. Mike Pence have this principled logic in mind when he signed the Indiana law on religious freedom? Those who think so may be in for a surprise. I explain why in Part II of this essay.
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