The following quote is probably the most important quote we can consider when we come upon issues concerning human laws, be they fundamental (Constitutions) or statutory (everyday legislation from legislative bodies such as Congress or the state legislatures).
"UPON these two foundations, the law of nature and the law of revelation, depend all human laws; that is to say, no human laws should be suffered to contradict these."
Today, 8/12/10, Judge Walker of CA decided to temporarily allow his stay on Prop 8 until 8/18/10, just days after ruling Prop 8 as unconstitutional. However, I see some fundamental flaws in Judge Walker's ruling and in the rhetoric and logic being used by opponents of Prop 8. I will outline those flaws in the following paragraphs and attempt to describe why those flaws are indeed, flaws.
Firstly, there seems to be this mistaken notion, as seen in the comments made by people concerning same-sex marriage, that "all men are equal", "all women are equal", or "all men and women are equal", as if they are trying to quote Jefferson in the Dec. of Independence. But if you read what Jefferson actually wrote, their statements can't be further from the truth. "All men, women, and men and women are NOT equal". Rather, as Jefferson wrote, they are "created equal," meaning they are all created on the same footing and all have certain inalienable rights that can be surrendered by the individual carrying them, but cannot be taken from them forcefully without due process of law. But being "created equal" does not mean that we are indeed TRULY created equal in qualities, gifts, talents, or situation. Rather it means LEGAL equality. We are all born with the equal opportunity to pursue our happiness, improve our situation and move up, or down the social ladder according to our merit, effort, and choices. In other words, there are no laws or legalities prohibiting certain social classes, races, or types of people, from progressing and improving their lot in life, learning new things, improving their natural talents and gifts, gaining and improving new ones, and becoming what they want to be and the best they can be. There are no laws or legalities keeping certain people in a certain social situation or profession and prohibiting, or indeed even making it extremely difficult to progress from and out of the situation they were naturally born into. All people have the abilities and gifts to progress in their own way. But they do not have equal qualities, gifts, and abilities, or rather we are not all born with the same amount or types of qualities or gifts, and we are not all born into the same or social and monetary situations. But even despite our natural inequality, we all have the equal opportunity to progress according to our desires and efforts. That is what it means to be "created equal;" even though people might be born BETTER OFF or WORSE OFF than others, does not mean that they are born, and will remain so forever, inherently, naturally and legally BETTER or WORSE than others. Not man/woman is legally or inherently BETTER or WORSE than another. Not everyone has the same gifts and talents, nor does everyone have the same height, amount of hair, skin, teeth, or the same bodily proportions. All men and women are born with certain talents, some with one, some with another, some with many, but each having one or more different ones, but never all of them. And although all have the equal right and opportunity to gain more of those talents or gifts, by means of our own personal merit and hard work, no human being will ever attain all talents. That is for a perfect person, and as we all know, humanity is not capable of perfection in this fallible and temporal world. And even if attaining all such talents were possible, and perfection was possible, only few would reach it, meaning not all would do so. Thus, we have still have a scenario of inequality. Natural talents, personality, and merit, indeed the very existence of merit, are what truly make individuals different, or in other words, unequal. And there will never be, nor can there ever be, true equality. For that would require the lack of personality, gifts and talents, and gender. And this would result in coercion instead of free agency. From a religious perspective, even in the next life, when we all go to our appropriate kingdoms according to our choices, deeds, and personal (yes, personal, not collective) judgments will there still be inequality, in the choices and deeds one is judged for and in the rewards/consequences one receives for those choices and deeds. The very nature of a hierarchy of heavenly kingdoms denotes inequality. The lower kingdoms cannot have what the higher kingdoms have, and visa-versa.
Men and women too are unequal in that they each have different roles based on their different internal plumbing and nature. If they were equal, then each man would have female plumbing and female characteristics while each female would have male plumbing and male characteristics. But we don't, do we. Therefore, people seem to be confusing what Jefferson and the Dec. of Independence really says, confusing equality with being "created equal", being "created equal" with actually being created with the same qualities, talents and situations, as well as equality with certain inalienable rights.
Judge Walker, in his ruling concerning Prop 8 in CA, has stated that in his view, Prop 8 attempts to set up a hierarchy within marriage, in which heterosexual married couples would be more important or, or higher in equality and in the hierarchy than homosexual "married couples", and that "The evidence shows conclusively that moral and religious views form the only basis for a belief that same-sex couples are different from opposite-sex couples."
http://articles.latimes.co/ m/2010/aug/05/local/la-me- gay-marriage-california-20 100805
But this is not so Judge Walker. Evidence plainly shows that religious views and morals alone cannot and do not form the only basis for this difference and this hierarchy. Rather, nature and natural law does. Nature is what truly sets same-sex couples apart from opposite-sex couples. Morals and religious views are only compliant with nature. Nature is the true culprit, sir. For same-sex couples cannot do what opposite-sex couples can do, i.e. procreate. See what happens when to try to change or alter nature. I don't think the results will be too positive.
"The essence of Law, of right and wrong, does not depend upon words and clauses, inserted into a code or statute book, much less upon the conclusions and explications of lawyers; but upon reason and the nature of things, antecedent to all laws." - John Trenchard and Thomas Gordon, "Cato's Letters" (as quoted by Gordon S. Wood in his "The Creation of the American Republic, 1776-1787," pg. 456).
This too includes fundamental law, AKA Constitutional law. Constitutional law may be the highest form of human law, but it is not the highest law we live by. Fundamental law must be bound by natural law, which human beings, no matter how hard or how much they try, cannot not alter or fundamentally change. They can manipulate it, by means of natural law, but they cannot fundamentally change it. No matter how much a legislative body may legislate stating that the moon shall not and shall not be able to rise at night, the moon will indeed rise, due to it's natural course, be that legislation statutory or fundamental law.
The people's decision to not allow same-sex marriage is not based on unreasonable or irrational beliefs. They are also not solely based upon their religious or moral views, as Judge Walker has tried to indicate. Rather, these religious and moral views, as pointed out already, are compliant with and based upon "reason and the nature of things". All things hark back to, or rather, are based upon and reliant upon nature. Nature has never condoned same-sex marriage, and nor will it ever. Homosexual attraction, marriage, and sex is unnatural. It always has been and always will be, due to the scientifically natural make of the male and female body, both in the form of reproductive and sexual organs, and in the form of chemical and chromosome make ups of the mind and body. If Nature had wanted to condone and make possible same-sex marriage, it would have done so by making sex morphing in human beings possible, like in frogs and other animals, or Nature would have given men and women both male and female reproductive organs, sex organs and hormones, and the same chemical and chromosome make ups in our bodies. But that is not the case. Males and females are fundamentally and scientifically (naturally) different. Males and females alone are meant for procreation, and not males and males, females and females, or transgenders and transgenders. The principal purpose in marriage, a legal union by two individuals of the opposite sex, is procreation, and has been since the very beginning of time and civilization. History is the greatest proof we have of this fact. And children are born for a multitude of reasons as well, the most important being to multiply and replenish the earth, keeping society growing and progressing. It is true that some male-female couples choose not to have children after or before they are married and some male-female couples cannot bear children due to infertility, but procreation still remains, and will forever remain, as long as people continue to die, the primary principle in two couples of the opposite sex coming together in a legal union. And procreation cannot be achieved by same-sex couples.
Thus, as has already been asserted and proved, Nature does not and never will condone same-sex marriage; rather, it is society that does, and society does not always think or live by Nature. Society, made up of fallible and only partially knowledgeable human beings, has always tried to alter or change nature, either purposefully or ignorantly, due to lack of knowledge. Trying to legislate that same-sex couples may marry or trying to prevent legislation from saying same-sex couples may not marry is just another example of such.
These writings by Trenchard and Gordon, William Blackstone, and other writings concerning the nature of law and he laws of nature very much influenced the Founding Fathers of the United States, the constitution-writers and ratifiers of the American Revolution, both the state constitutions and the federal Constitution. What seems to be an issue is that it appears that many people might not understand the history of the making of the Constitution and the American Revolution in general, and what influenced the framers of it, influences that although might not have been written into the Constitution verbatim or word for word, were written into it by the very ideas presented in it, the very ideas reached by the influences and experiences of the Enlightenment, Whig theory, and the Revolution itself. You cannot truly understand the Constitution unless and until you truly understand the creators of it, what influenced them, what influenced them to write it in the first place, and what influenced them in writing it. You must also first understand the environment in which they decided to write it and indeed wrote it. Some have attempted to claim that writings such as "Cato's Letters", Blackstone's "Commentaries", or other older writings concerning the laws of Nature are not written into the Constitution; But, if you look, writings such as these are very much written into the Consitutiotn and American politics and law. They are very much present in the Constitution, even if the exact wording was not actually incorporated into it. Where's the proof, you ask? Here:
1.) "The 'imaginary omnipotence' of the legislatures, 'that whatever is ordained must be law, without any exception of right and wrong must be restrained within the bounds of reason, justice, and natural equity.' 'Will and Law' [are] not synonymous in free governments. 'Any acts therefore which are contrary to nature, justice, morality, benevolence, are contrary to reason,' and 'not withstanding the authority of Kings, Lords, and Commons, or to speak more in place, of the Senate and House of Commons, [are] null and void, being mere corruptions, and not laws'." - Gordon S. Wood, "The Creation of the American Republic, 1776-1787," pg. 456 (Wood quoting a North Carolinian from 1787).
2.) ""...nothing ever was politically right, that was morally wrong." - "Philedelphia, PA Journal," Mar. 28, 1781 (quoted and cited in Gordon S. Wood's "The Creation of the American Republic, 1776-1787," pg. 456).
3.) "When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation." He has refused for a long time, after such dissolutions, to cause others to be elected, whereby the Legislative Powers, incapable of Annihilation, have returned to the People at large for their exercise...." - Thomas Jefferson; "The Declaration of Independence."
This last quote seems specifically influenced by Blackstone to me, in that once a society dissolves its legislative body, the society returns to a state of nature where all legislative power returns to the people as a whole, to do with it as they please. This line of thought also influenced many other Founding Fathers as well. James Otis talks of this as well in his "The Rights of the British Colonies Asserted and Proved," which states,
"But let the origin of government be where it may, the end of it is manifestly the good of the whole. Salus populi suprema lex esto [let the welfare of the people be the supreme law], is of the law of nature, and part of that grand charter given the human race (though too many of them are afraid to assert it) by the only monarch in the universe, who has a clear and indisputable right to absolute power; because he is the only ONE who is omniscient as well as omnipotent..."
"To say the [British] parliament is absolute and arbitrary, is a contradiction. The parliament cannot make 2 and 2, 5. Omnipotency cannot do it. The supreme power in a state, is jus dicere [to declare the law (judges/judiciary)] only:-jus dare [to give or make the law (legisalture/legislative)] , strictly speaking, belongs alone to God. Parliaments [and Congresses] are in all cases to declare [DECLARE] what is for the good of the whole; but it is not the declaration of parliament that makes it so: There must be in every instance, a higher authority, viz. GOD. Should an act of parliament [or Congress] be against any of his natural laws, which are immutably true, their declaration would be contrary to eternal truth, equity and justice, and consequently void: and so it would be adjudged by the parliament itself, when convinced of their mistake."
"Government is founded immediately on the necessities of human nature, and ultimately on the will of God, the author of nature...."
"There can be no prescription old enough to supersede the law of nature, and the grant of God almighty; who has given to all men a natural right to be free, and they have it ordinarily in their power to make themselves so, if they please."
"The same law of nature and of reason is equally obligatory on a democracy, an aristocracy, and a monarchy: Whenever the administrators, in any of those forms, deviate from truth, justice and equity, they verge towards tyranny, and are to be opposed...."
More can be read from Otis's work here:
Thomas Paine, in his proverbial “Rights of Man,” writes that "[t]he error of those who reason by precedents drawn from antiquity, respecting the rights of man, is that they do not go far enough into antiquity. They do not go the whole way. [B]ut if we proceed on, we shall at last come out right; we shall come to the time when man came from the hand of his Maker. We are now got at the origin of man, and at the origin of his rights. The illuminating and divine principle of the equal rights of man (for it has its origin from the Maker of man) relates not only to the living individuals, but to generations of men succeeding each other. Every generation is equal in rights to the generations which preceded it, by the same rule that every individual is born equal in rights with his contemporary. [E]very child born into world must be considered as deriving its existence from God. The world is as new to him as it was to the first man that existed, and his natural right in it is of the same kind." ("Rights of Man", Thomas Paine, pg.25-26)
Paine thus establishes, as did his contemporaries, that man's natural rights stem from our Creator. However, in his discussion of natural rights, Paine doesn't stop here. He continues by delving deeper into the topic of natural rights, and seeks their definition. He continues, “[n]atural rights are those which appertain to man in right of his existence. Of this kind are all the intellectual rights, or rights of the mind, and also all those rights of acting as an individual for his own comfort and happiness, which are not injurious to the natural rights of others. Civil rights are those which appertain to man in right of his being a member of society. Every civil right has for its foundation some natural right pre-existing in the individual, but to the enjoyment of which his individual power is not in all cases, sufficiently competent. Of this kind are all those which relate to security and protection. From this short review it will be easy to distinguish between that class of natural rights which man retains after entering into society and those which he throws into the common stock as a member of society. The natural rights which he retains are all those in which the power to execute is as perfect in the individual as the right itself. Among this class, as is before mentioned, are all the intellectual rights, or rights of the mind; consequently religion is one of those rights. The natural rights which are not retained, are all those in which, though the right is perfect in the individual, the power to execute them is defective. They answer not his purpose. A man, by natural right, has a right to judge in his own cause; and so far as the right of the mind is concerned, he never surrenders it. But what availeth it him to judge, if he has not power to redress? He thereofre deposits this right in the common stock of society, and takes the arm of society, of which he is a part, in preference and in addition to his own. Society grants him nothing. Every man is a proprietor in society, and draws on the capital as a matter of right." (Paine, pg. 27-28)
Thus, "ever civil right grows out of a natural right; or, in other words, is a natural right exchanged. We have now, in a few words, traced man from a natural and individual to a member of society, and shown, or endeavored to show, the quality of the natural rights retained, and of those which are exchanged for civil rights." (Paine, pg. 28)
From Paine's writings in his "Rights of Man," we see that our natural rights as human beings stem from our Maker, or as Thomas Jefferson put it in his Declaration of Independence, "we are endowed by our Creator certain inalienable rights." These are our natural rights. Of these natural rights, is religion. Now, being that religion is a protected right by the 1st Amendment of the federal Constitution, and that marriage is an important and ancient aspect of religion, there can be no law that forces any religion to marry same-sex couples, or to marry anybody, no matter their sex or gender identification. That right belongs solely to the religion and church who practices that religion. However, knowing as we now do that our natural rights are endowed in us by our Creator, and that, according to the history and scriptures of the Christian religion, as well as every other religion on the face of the earth (and their scriptural references and histories), our Creator saved marriage for solely between a man and a woman. This is plainly evident, as spoken of earlier, by our Maker's creation of both man and woman, and their natural, physical, and emotional, and chemical make up of their bodies. Therefore, if it were a civil right for same-sex couples to be married, we would all have the natural right to do so, whether it be a religious marriage or a civil union. And if we had that natural right to marry whatever sex we pleased, our Creator would have endowed us with that natural right. But, we have been commanded by our Creator to marry only members of the opposite sex, in order to multiply and replenish the earth. Therefore, we were not endowed with a natural right to marrying whichever sex we please. We are endowed only with a natural right, and have been commanded by our Creator, to marrying only members of the opposite sex. We may marrying whomever we please, whichever race we please, whichever age we please, be it only that it be a member of the opposite sex. And because this is a natural right endowed in every individual from our Maker, if it is such that we have deposited that right to marriage into the common stock of rights held by society, it will be considered a civil right. But, it cannot be considered a right, neither civil nor natural, to marrying members of the opposite sex. When homosexual members of society claim that it is their civil right to marrying their individual they love, that civil right pertains only to marriage between a man and a woman. When they claim that it is their civil right to marry a member of the same-sex, they are claiming something that never was, never will be, and never can be. It cannot be so.
There was, during the era of Paine and his American contemporaries, as there is today, a direct connection to a deity and natural and civil rights, even if there is no state religion or establishment of religion in this country. Anyone who denies these assertions of the Founders denies our very governmental system and the very existence of natural and civil rights, which means we have none. And if we have no rights, then our Constitution is void and the principles of liberty and rights in the Declaration of Independence and in the Bil of Rights are void and meaningless as well. Our natural rights had to come from some where. They could not have just popped out of thin air. If any religion in America today claims their rights from a Creator, believes in a creator story, and has such a story within their scriptures and historical tenets, which I am very much willing to bet that most, if not all do, especially in the Christian realm, then they cannot deny what Paine has written. If any religious American or non-religious American still today believes in the principles of liberty, freedom, and rights, as expressed by Paine and his contemporaries, American and European, and still claims their rights from a Creator, then cannot deny what Paine has written. If America still bases it's principles concerning liberty and rights off of such principles that they are endowed within us by our Creator, as it says in our Declaration of Independence, which still stands today, then what I have said throughout this article cannot be denied without denying the existence of natural and civil rights in the first place, even if we don't have a state religion. Separation of church and state means no one religion is supreme above the other, or that no group of religions are supreme and legally established and allowed to exist over any other. It in no way separates religious influence in general from our government and its principles. It means all religions are welcome to practice and hold their own beliefs. However, it also means anyone is free to not practice religion, or not believe in a deity. And if anyone were to try to separate religious influence in general from our government and its principles on liberty and rights, then they would necessarily have to deny all that was written by our founders, and they would have to deny our founding documents, the Declaration and Constitution included. But the clear, irrefutable fact still remains, that our founders believed in a deity, and they believed that that deity created man, and that he endowed man with certain natural rights that could not be taken from him/her. They believed that government resulted out of society and not over society, and our government was erected by them so as to protect these natural and civil rights, our Liberty. If anyone denies this, then they deny the Founders of America, our Constitution, the Declaration of Independence, and the complete existence of natural and civil rights.
After having seen these quotations, when we read the Constitution we can see that the Constitution itself actually does include some actual wording concerning the laws of nature:
"We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America."
"...[P]romote the general welfare...." This sounds strikingly similar to what Otis wrote above when he said "the end of it i[government] s manifestly the good of the whole. Salus populi suprema lex esto [let the welfare of the people be the supreme law], is of the law of nature...."
And it even says in Article I, Section 8 of the federal Constitution: "The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States."
Again, the "general welfare of the United States." So it seems to me that the Cato's Letters and Blackstonian legal thought are indeed present in the Constitution, even though they are not necessarily quoted word for word, excepting the two examples provided above where they are indeed actually paraphrased. The ideas are very much there, because they were an influence upon the writers and framers of the Constitution.
But perhaps some will say that Natural Law has no connection to the 14th Amendment in the case of same-sex "marriage", and that all this talk of the laws of nature do not matter. That line of thinking would be a gross mistake, for it very much DOES matter. The entire Constitution, both Federal and state, must be bound by the laws of nature. There cannot be one clause or amendment that does and another that doesn't follow natural law. It either does or it doesn't, in its entirety. To claim that the laws of nature have no relevance to the 14th, even in accordance with the issue of same-sex marriage, is a mistake. That would be like defending the Civil War Confederacy in their fight for their "constitutional" right to own their slaves, their "property", if you will; slavery, or the "right" to own slaves being not prohibited by the Constitution in its wording, but rather was enforced by the 14th and other sections of the Constitution in wording. But that defense would be wrong because according to the laws of nature, no man is allowed to own another man; in other words, slavery is contrary to the laws of nature. That slavery is against the laws of nature was asserted by Thomas Jefferson himself in his "Summary View of the Rights of British America:
"The abolition of domestic slavery is the great object of desire in those colonies, where it was unhappily introduced in their infant state. But previous to the enfranchisement of the slaves we have, it is necessary to exclude all further importations from Africa; yet our repeated attempts to effect this by prohibitions, and by imposing duties which might amount to a prohibition, have been hitherto defeated by his majesty's negative: Thus preferring the immediate advantages of a few African corsairs to the lasting interests of the American states, and to the rights of human nature, deeply wounded by this infamous practice."
Pennsylvania Founding Father Benjamin Rush, too, asserts and proves that slavery is contrary to the Laws of Nature in his 1773 address to America, titled "An Address to the Inhabitants of the British Settlements in America, Upon Slave-Keeping."
He states, "[f]uture ages, therefore, when they read the accounts of the Slave Trade (-if they do not regard them as fabulous)-will be at a loss which to condemn most, our folly or our guilt, in abetting this direct violation of the Laws of nature and religion."
He also writes, "[t]he earth which multiplies her productions with a kind of profusion, under the hands of the free-born labourer seems to shrink into barrenness under the sweat of the slave. Such is the will of the great Author of our Nature, who has created man free, and assigned to him the earth, that he might cultivate his possession with the sweat of his brow; but still should enjoy his Liberty."
Because slavery is contrary to the laws of Nature, what the Civil War era Confederacy was fighting for, i.e. the right to own their slaves and such, wasn't truly a right, because it was contrary to the laws of nature. This means it really wasn't protected by the 14th or any other part of the Constitution, not only because slavery violates natural law, but because the Constitution itself violated natural law in respect to allowing slavery. Same-sex marriage fits within the same format. It cannot be considered any kind of right, fundamental or civil, exactly because it violates the laws of nature. Thus, Prop 8 cannot be unconstitutional, as Judge Walker and many others have tried to assert.