In a provocative Wall Street Journal article, "Live and Let Live", Richard Epstein of the University of Chicago law school challenged the Family Marriage Act. Although an admirer of Epstein's work, I must disagree with his arguments that "constitutional libertarians" cannot defend the Family Marriage Amendment (FMA), and that the "path to social peace lies in the willingness on all sides to follow a principle of live-and-let-live on deep moral disputes." This path will instead use government to undermine the moral public culture necessary for the maintenance of our free society.
"Constitutional libertarians," secular or religious, would all agree the Federal government has no business restricting the individual rights of consenting adults' private sexual practices, an issue not impacted by the FMA. It may not surprise Prof. Epstein to learn that most religious Americans would also agree with these libertarian sentiments. So this is a straw man, as are most arguments which demonize Americans of faith, taught to treat all humans, each created in the image of God, with respect and tolerance. These same Americans are neither theocrats nor homophobes. Their only "hatred" is for the sin, not the sinner.
Unlike private sexual behavior between consenting adults, same-sex marriage is neither a private matter nor an individual right. It is a social and legal contract that would publicly sanction and promote a lifestyle and set of behaviors that the vast majority of Americans hold as immoral, unhealthy, and/or unnatural. Most base their viewpoint on universal Biblical law, but many others understand that sexual morality is also a basic tenet of natural law derived from human nature. It is not a social construct.
It is one thing to decriminalize and tolerate private, adult behavior "contrary to public morals" (Epstein's term), but quite another to legally sanction and force acceptance of it.
The absence or removal of laws prohibiting adult behavior "contrary to public morals," might be considered by some as neutral between religion and irreligion, but there is no way that affirmative government action endorsing and sanctioning adult behavior, which violates universal religious principles, can be neutral - a major fallacy of those advocating same-sex marriage. On this ground alone, such laws should be ruled unconstitutional, even by the most ardent proponents of strict "separation between church and state."
Our Constitution was not created and cannot exist in an amoral vacuum, with an agnostic opinion on "deep moral disputes." Unlike humans who are born morally tabula rasa, with a blank slate, the United States was not created morally tabula rasa as a secular nation without a widely accepted and objective moral/ethical system. For our government to undermine that moral/ethical system is to commit national suicide, which explains why same-sex marriage is opposed by the majority of Americans.
Our Founders did not need the results of the 20th century experiment with purely secular societies that resulted in the murder of tens of millions innocent citizens and the collapse of those societies. They had studied the collapse of societies which lost their moral compass, such as ancient Greece and Rome. As George Washington advised "Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle."
The unifying moral principle of this country's founding was (and remains) a religious faith in a divine Creator, which was expressed in the Judeo-Christian ethic. Our form of secular government was designed only for a non-secular people.
President John Adams said it succinctly, "We have no government armed with power capable of contending with human passions unbridled by morality and religion. Our Constitution was made for a moral and religious people. It is wholly inadequate to the government of any other."
If secular fundamentalists want to be atheists and hedonistic libertines when they grow up, that is their right in our free society, but adult atheists and hedonistic libertines do not have a right to use government coercion to undermine the parental responsibilities of the majority and eventually the moral underpinnings of our free society.
Why should the majority of Americans, attempting to raise their children with Judeo-Christian values, be forced on behalf of less than 2-3% of the population to teach them that their own government opposes and dismisses the fundamental laws of sexual morality taught in the Bible and by all of the world's major religions?
Prof. Epstein is overlooking what the Founders unanimously understood, but never dreamed they had to write into the Constitution. A "moral and religious people" can only be created if the majority of children are raised to be "moral and religious."
Samuel Silver is Chairman of Toward Tradition (www.towardtradition.org), a national movement of Jewish and Christian cooperation, fighting anti-religious bigotry and secular fundamentalism. Read the entire article on the Toward Tradition website. Reprinting allowed.