The Personal Website of Mark W. Dawson

Homosexuality Nature and Homosexual Marriage

The question of Homosexual Nature and Homosexual Marriage, along with Abortion and Race Relations, are three of the greatest social issues in modern America. As to Abortion and Race Relations, I have discussed these issues in many of my Chirps and Articles. This article is my extended thoughts on this topic.

Homosexuality Nature

As to the nature of homosexuality, I believe that there are three bases for homosexuality. The first being nature - a gene or genome sequence that predisposes a person towards homosexuality. The next is a psychological trauma that turns a person towards homosexuality (see note below). Finally, in today's society, I believe some people choose homosexuality as a lifestyle. It is not uncommon to choose homosexuality as a lifestyle as it has occurred throughout history. Most notably in England in the 1920s (a very good novel, "Brideshead Revisited" dealt with this subject in English society), and ancient Greco-Roman civilizations.

As to the natural cause of homosexuality, imagine if you would, that science could determine that there is a gene or genome sequence that predisposes homosexuality. We could next imagine that there could be a scientific test to determine if that gene or genome sequence exists in a person. Suppose we gave that genetic test to all persons claiming to be homosexual; what do you think would be the percentage of those homosexual people who had those genes or genome sequence. I would wager a large amount of money that it would be less than 100%. That raises the question of whether those persons claiming to be homosexual are indeed homosexual through natural causes. What is to be done, if anything, for those persons claiming to be homosexual that does not have this gene or genome sequence? Would they then be adjudged to have a psychological condition that may require therapy, and should this therapy be mandatory (I certainly hope not, as I believe that no person should be forced into therapy unless they present a danger to themselves or others)? The larger question then would be how to deal with those persons claiming to be homosexual that does not have the gene or genome sequence of homosexuality.

Another large issue would be that if they can determine if a zygote/embryo/fetus has this gene or genome sequence, would it be morally acceptable for modern medical science to correct this situation? After all, we do prenatally correct other physiological and genetic ills if it is possible. What is the morality of the parents deciding to correct this homosexual gene or genome sequence situation?

Finally, there has been much debate on how widespread homosexuality is in the population of the United States. Some claim that it is up to 10%. If this is true, then any random group of people, for instance, an audience of 100 people, there would be ten people in that audience that were homosexual, or that 10% of your coworkers were homosexual. Does common sense say that this number is correct, or is it smaller than the 10%? I would again wager a large amount of money that the actual figure is less than 10%, and indeed may be less than 5%.

These observations on the nature of homosexuality also hold true for the entire LGBT (Lesbian, Gay, Bisexual, Transgendered) community.

Note - Psychological trauma simply means that an event has occurred that has changed a person. This event could be positive or negative, but it is an event that has changed a person.

Homosexual Rights and Marriage

If you had read my article about "A Hierarchy of Rights", you know that I believe that there are three kinds of rights; Natural or Human rights, Constitutional Rights, and Civil Rights. Every person has these rights, including homosexuals. These rights of a homosexual are the same as any other person that resides in the United States. As such, society and the law must treat homosexuals as they would treat any other person.

Today homosexuals are accepted within society and are free to engage in homosexuality. The topic of debate is do homosexuals have the right to marry. To properly analyze this question, and derive an answer, requires that we think about the nature of marriage.

The first question then is, ‘is marriage a Natural or Human Right’? There is no question that, as humans, we have the right to freely associate with anybody we choose to. This association may be in any form that both parties are agreeable to. Therefore, homosexual associations are a Natural or Human Right. There is also a human right to privacy. What you do in the confines of your own home is your business, as long as it does not violate the Natural or Human Rights of others who may reside in your home. The government has the right to become involved in what happens in your home if these actions are of a criminal nature, and sexual activity between consenting adults is not a criminal act. The government has no business of being involved in what happens in your free associations or privacy rights, except to protect the Natural or Human, Constitutional, and Civil Rights of others with who you are involved.

The next question is, ‘is homosexuality a constitutional right’? Nowhere in the Constitution is sexuality or marriage addressed. The closest thing within the Constitution is Amendment XIX: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex”. When considering homosexuality as a constitutional right, we must bear in mind Amendment X: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”. As the Constitution and its amendments do not directly address sexuality or marriage, it can be inferred that this issue is reserved for the states or for the people.

So, is marriage a civil right? To discuss this properly, we need the answer the question of "What is the governmental purpose of marriage?" Some people believe that marriage is to affirm the love and commitment and the sharing of a life between two people. This sharing also includes all the legal and economic benefits of being recognized as partners. However, what business is it of government to affirm the love and commitment between two people? However, there may be governmental interest in the legal and economic benefits to be recognized as partners. As to the original question of the governmental purpose of marriage, the reason for government involvement in marriage is to establish a legal and economic framework for a man and a woman to reproduce and to raise children, with those children to be the next contributing members of society. In the event of something happening to the marriage, such as divorce, abandonment, death, physical or mental cruelty, etc., the government needs to have the legal means to protect the children of that marriage to the best of its abilities.

As a homosexual couple cannot reproduce (except by artificial means) nor raise children (except through the auspices of adoption), there is no governmental reason to be involved in a homosexual marriage other than securing the legal and economic benefits of being recognized as partners. Securing the legal and economic benefits of being recognized as partners can also be accomplished through a power of attorney (although that method is somewhat cumbersome in practice). Therefore, homosexual marriage is not a civil right unless a State wishes to make it a civil right. There may be good reasons that a State wishes to do so, but it is up to the State Legislature, as representatives of the people, to determine if they wish to do so. It is not up to the judiciary to determine this, as this is a right reserved to the States or to the people, enacted through the normal legislative process.

A state may wish to create another institution for homosexual coupling so that a homosexual couple can secure the legal and economic benefits of being recognized as partners, and they have every right to do so. This may raise other issues and concerns such as adoption, the right of a heterosexual couple to avail themselves of this form of partnership (and what happens in the event of pregnancy of a heterosexual couple that does so), the disposition of property and assets when the partnership is dissolved, etc. These issues and concerns must be fully investigated and incorporated into the laws that are created to allow for homosexual partnerships.

Please note that I have not expressed my opinion on the desirability or undesirability of homosexual marriage or partnerships. I have simply explained my reasoning on how this should or should not occur and by what means by which it should be implemented. Many would argue that homosexual marriage is good for society and the individuals involved in a homosexual relationship. This article does not make an argument in favor or disfavor of homosexual marriage, only the proper Constitutional means to achieve this goal. And I would also note that if you achieve a good through unconstitutional means, you often do more harm than good, as you are harming the Constitutional basis of our Liberties and Freedoms. And if you harm the Constitution for one (arguably) good, then you can do it for any (arguably) good, and the Constitution becomes malleable to the dictates of the masses and not for the protection of our Liberties and Freedoms.

I believe that a State can allow for a homosexual marriage if this allowance is made through the normal legislative process (i.e., not a court action) of the State. To do so otherwise is to infringe upon the liberties and freedom of the people to determine what is permissible, or not permissible, within their State.

Many would argue that if one State allowed for homosexual marriage, then the other States must allow for homosexual marriage under the Full Faith and Credit Clause or The Equal Protection of The Law Doctrine of the Constitution. I would respond that this is a misreading of this clause and doctrine. As I have explained in my article, “Full Faith and Credit Clause of The U.S. Constitution and The Equal Protection of The Law Doctrine” and “The Meaning to the Thirteenth through Fifteenth Amendments” (which are the basis of this clause and doctrine), it is not the application of one State's laws in another State that are the purposes of this clause and doctrine. The Full Faith and Credit Clause of The U.S. Constitution is only used for the judicial proceedings of one State in another, while The Equal Protection of The Law Doctrine means that the Laws of a State are equally applicable to any person within the jurisdiction of that State, but that the laws of one State are not applicable in another State.

The Full Faith and Credit Clause of the Constitution, nor the Equal Protection of The Law Doctrine, does not require a state to substitute another state’s law or policy for its own, which means that it does not have to honor something that is specifically contrary to its own law. Therefore, a States’ courtesy of recognizing a marriage license from another state regarding homosexual marriage need not be extended to homosexual marriage licenses if a State does not recognize homosexual marriages.

The issue of licensure is an example of this limitation. For example, someone who has a driver’s license in Arkansas may legally drive during a visit to Missouri. If they move to Missouri, however, they will be required to obtain a driver’s license in their new home state. This holds true for hunting licenses, firearm licenses, and marriage licenses (although rarely done, as each State extends the courtesy to other States regarding marriage licenses), to name a few. Licensed professionals are another example of each State being allowed to maintain and honor only their own legislation. Doctors, pharmacists, contractors, attorneys, and other professionals who want to practice in multiple states must obtain a separate license in each State. States often extend a courtesy of recognizing some other States licensing, but this is a courtesy that need not be extended if a State Legislature does not wish to recognize the other States licensing. Civil and Criminal laws of a State also fall into this bracket.

Therefore, it is not necessary for one State to recognize another’s State’s laws, nor any other law that is the prerogative of a State, but only to recognize the judicial proceeding of another State under the Full Faith and Credit Clause of the Constitution. Consequently, it is not necessary for one State to recognize another’s states laws on marriage. They have recognized a marriage license of another state in the past as a courtesy to the other state, but when marital judicial disputes arise, such as a divorce that is instituted in their state, they utilize their own state's laws on marriage to settle the dispute. As homosexual marriage in every state was not recognized prior to the Supreme Court ruling, they did not recognize homosexual marriage in their state, and they did not extend this courtesy to homosexual marriage within their state.

The law is not all as I have written in my Article, "The Law is Not All, for the law must have a foundation to build upon. If there is no foundation for the law, then the law is only the dictates of the masses or the decrees of despots. In America, this foundation is the ideas of the Constitution, which itself was founded on the ideals of The Declaration of Independence as I have written in my Chip on "07/03/21 The Ideas and Ideals of The Declaration of Independence and The United States Constitution". Also, as I have written in my Article, "Natural, Human, and Civil Rights", in America, we have a hierarchy of importance to this foundation as I have examined in my Article, “A Hierarchy of Rights”. When a Law (or Court ruling) is in opposition to these ideals and ideas, it is a national issue and not a state issue, and as a nation, we must bring the law and court rulings back into compliance with these ideals and ideas. To not do so is to make a law or court ruling with no foundation.

When the Supreme Court ruled on homosexual marriage, it had no jurisdiction under the Constitution nor the Natural Rights foundations of our government. In doing so, it was not upholding the Constitution but violating the Constitution. When the Supreme Court rules outside of its jurisdiction, they become Lords, not Judges, as I have examined in my Article, "Judges, Not Lords", and Lords are antithetic to our American Ideals and Ideas. Given the Supreme Court ruling on homosexual marriage, it would be much better for the Supreme Court to admit they erred and return this issue to the States. Alas, the history of the Supreme Court admitting they erred is few and far between. If they do not do so, I would propose a Nullification Statement by the States that allows the Legislatures of each State to resolve this issue. Legislative nullification of court orders and rulings have ramifications as to the rule of law and order in a just society. Such Nullification Statements should not be made lightly and only done with consideration of the actual and unintended consequences and of this nullification act. However, Homosexual Marriage may be proper for a Nullification Act by the States, as the Supreme Court ruled outside of its Constitutional bounds in deciding this issue.