Sexual Freedom and Its Discontents

by Ronald J. Rychlak - May 22, 2008

Reprinted with permission.

In my last column, I noted that the California Supreme Court was about to decide on the constitutionality of gay marriage in that state. The verdict is in, and a law defining marriage as the union of one man and one woman has been overturned. By a 4-3 decision, the court declared the state's Defense of Marriage Act unconstitutional, thus legalizing same-sex marriages in California.

Chief Justice Ronald George, writing for the majority, said that "our state now recognizes that an individual's capacity to establish a loving and long-term committed relationship with another person and responsibly care for and raise children does not depend upon the individual's sexual orientation."

Partnerships of committed same-sex individuals were already legal in California. That state had also granted spousal-type rights and responsibilities to homosexuals who entered into civil partnerships. These partnerships, however, were not fully recognized as marriages. With this new decision of the Supreme Court, homosexuals will now be entitled to state-recognized marriages in California.

Pro-family groups have said that they will petition the court to delay implementation of same-sex marriage until the voters have an opportunity to vote on a proposed amendment to the state constitution that would define marriage as a union of one man and one woman. Eight years ago, 61 percent of the voters approved legislation that would do just that. While the court can (and did) trump that legislation, a constitutional amendment could override the court. Of course, it is hard to amend constitutions, and Gov. Arnold Schwarzenegger has announced that he will not support the effort.

Pope Benedict XVI, speaking a day after the California decision, restated the Catholic position:

The union of love, based on matrimony between a man and a woman, which makes up the family, represents a good for all society that can not be substituted by, confused with, or compared to other types of unions.

That same week he also reasserted the Church's traditional teaching on contraception, saying of Pope Paul VI's encyclical declaring it illicit: "The truth expressed in Humanae vitae doesn't change; on the contrary, in the light of new scientific discoveries it is ever more up to date."

Contraception and gay marriage might seem to be two completely different issues, but, legally speaking, they're pretty closely related. Along with abortion, these "rights" flow from similar reasoning and from a similar motivation: sexual freedom.

Up until 1930, all Christian churches opposed contraception on moral grounds. Wesley, Calvin, Luther, and virtually every other Protestant leader prior to the 20th century spoke in opposition to contraception. That changed when, at their 1930 Lambeth Conference, Anglicans approved of the use of contraception by married couples on a limited basis. Other Protestant denominations followed shortly thereafter. Soon, most all Protestant objections to contraception disappeared.

This shift in the perception of the morality of contraception led to a change in the law. Prior to 1930, most states prohibited the sale of contraceptive devices. By 1960, most such prohibitions had been removed from the books. Connecticut, however, still outlawed the sale of contraceptives. In 1965, the U.S. Supreme Court held that a married couple had a constitutional right to purchase contraceptives, so Connecticut's law was overturned.

This right to contraception cannot, of course, be found in the wording of the Constitution. The Supreme Court, however, said that there were "penumbras, formed by emanations" from the Bill of Rights, and that is where this right was located. By 1973, this same analysis was used to find that women had a constitutional right to abortion.

Today, of course, the issue is gay marriage. Certainly the words "gay marriage" are not found in the text of the Constitution, but a judge might find "emanations" that provide such a right. After all, this analysis lets a judge find almost anything in the Constitution.

Moreover, there is a certain logic to finding such a right. If heterosexual couples, married or not, have a right to sexual activity without the possibility of procreation (because they have constitutional rights to abortion and contraception), is there a legitimate logical basis for denying that right to gay people? This is where gay activists have a point: The idea of having a constitutional right to contraception and abortion but not gay marriage is rather inconsistent.

In accordance with its consistent view of natural law, the Catholic Church holds that contraception, abortion, and gay marriage are all illicit. Some find this view harsh, but it is both logical and constant. If our Protestant brethren are serious about their opposition to gay marriage (as they certainly seem to be), they need to reassess their positions on these other issues. Otherwise, they may as well acknowledge that as California goes, so goes the nation.

Ronald J. Rychlak is the associate dean and MDLA Professor of Law at the University of Mississippi School of Law. He is the author of Hitler, the War, and the Pope (2000) and Righteous Gentiles (2005).