Alan Keyes believes that Justice Antonin Scalia didn’t go far enough in his dissent in Windsor, the decision which struck down a key component of the Defense of Marriage Act, maintaining that he should’ve argued that gay marriage, which Keyes called a “tyrannically defined fabrication,” is unconstitutional.
According to Keyes, gay marriage advocates are using the same line of reasoning of slavery proponents who argued that “the notion of unalienable rights did not apply to black people” and did so “by denying black people their share in human nature.” “In like fashion, the advocates of homosexual so-called marriage now seek to deny the nature of marriage” and “override right and justice as endowed by the Creator.” Since same-sex unions violate God’s laws, Keyes reasons, it is therefore unconstitutional and allow government to undermine unalienable rights.
The advocates of slavery in the United States often attempted to justify that institution by denying black people their share in human nature. On this account, they pretended that the notion of unalienable rights did not apply to black people, and that they therefore had no rights government was obliged to respect and secure. In like fashion, the advocates of homosexual so-called marriage now seek to deny the nature of marriage. They do so on the excuse of promoting equal treatment for homosexuals. But the necessary and intended result of their advocacy is to deny the family’s functional claim to be an expression of human nature, indeed the primordial expression of its social aspect. This, in turn, allows them to deny that the individuals who make up the family are engaged in an exercise of right, according to the laws of nature and of nature’s God. Once this is successfully denied, the activities arising from their exercise of right need no longer be respected as unalienable rights, antecedent to all human governments, which it is government’s aim to secure.
In what amounts to an effort to overturn the whole idea of unalienable rights that gives rise to constitutional self-government, some elements of America’s judiciary have moved to proclaim as law that marriage must be redefined in a way that accommodates homosexual relationships. But this means that a human relationship in no way rooted in the Creator’s provision for our nature must be allowed to usurp the name, authority, and rights of the God-endowed institution.
Once this effect upon the unalienable rights of the natural family is understood, it becomes clear that the Constitution is not neutral with respect to the approval or disapproval of same-sex marriage, in the name of law. There is an explicit constitutional prohibition against denying or disparaging rights unenumerated in the Constitution but retained by the people. Since the unalienable rights of the family arise from the individual’s commitment to fulfill the natural law by propagating humanity, they are certainly among these unenumerated rights. Therefore, Congress simply did its duty, in accordance with the 9th Amendment, when it moved to prevent the denial and disparagement of the rights of the natural family by judges and justices seeking to replace the natural family with a tyrannically defined fabrication.
Why did Justice Scalia fail to take note of this constitutional justification for DOMA, utterly ignored by the Windsor majority? Why, instead, did he pretend that the issue involved can simply be decided by majority vote of the people in their respective states, as if the human sovereignty that constitutes government, at any level, has authority to override right and justice as endowed by the Creator? In this respect, neither the Windsor majority nor Justice Scalia’s dissent shows any respect for the premises that informed the deliberations of the Framers of the U.S. Constitution. Yet without those premises, the declared purposes and essential features of the constitution they devised cannot be properly understood.