Author archives: Peter Sprigg

How Homosexuals in the Military Could Cause Casualties

by Peter Sprigg

December 15, 2010

Gen. James F. Amos, Commandant of the Marine Corps, suggested in an interview yesterday that allowing homosexuals to serve openly in the military could not only harm unit cohesion, but could actually increase casualties. Here are the opening paragraphs of the Washington Post report on the subject:

Marine general suggests repeal of ‘don’t ask’ could result in casualties

The Marine Corps’ top general suggested Tuesday that allowing gays to serve openly in the military could result in more casualties because their presence on the battlefield would pose “a distraction.”

When your life hangs on the line,” said Gen. James F. Amos, the commandant of the Marine Corps, “you don’t want anything distracting… . Mistakes and inattention or distractions cost Marines’ lives.”

In an interview with newspaper and wire service reporters at the Pentagon, Amos was vague when pressed to clarify how the presence of gays would distract Marines during a firefight. But he cited a recent Defense Department survey in which a large percentage of Marine combat veterans predicted that repealing the “don’t ask, don’t tell” law would harm “unit cohesion” and their tight-knit training for war.

So the Marines came back and they said, ‘Look, anything that’s going to break or potentially break that focus and cause any kind of distraction may have an effect on cohesion,’ ” he said. “I don’t want to permit that opportunity to happen. And I’ll tell you why. If you go up to Bethesda [Naval] Hospital … Marines are up there with no legs, none. We’ve got Marines at Walter Reed [Army Medical Center] with no limbs.”

Amos had said previously that allowing gays and lesbians to serve openly could cause “distractions” and “risks” for combat units. But his remarks Tuesday were the first time that he or any other senior military leader has suggested that repealing the 17-year-old “don’t ask, don’t tell” law could directly endanger troops and cost lives.

Advocates for repeal of the current law against homosexuality in the military are scoffing at Gen. Amos remarks, insisting there is no conceivable scenario under which the presence of homosexual troops could lead to casualties.

However, retired Marine Gen. John J. Sheehan gave a specific example of how this could happen in his testimony to the Senate Armed Services Committee last Marchan example drawn from his own personal experience in combat in Vietnam. Here is his description of the incident, from the transcript of the March 18 hearing (bottom of p. 16 to p. 17 in the link):

General SHEEHAN. Senator, in my experience, homosexual marines create problems on the battlefield. Let me give you a case and point.

Early years of Vietnam, 9th Marines, West of Da Nang, rifle company on a ridgeline combat outpost, the intelligence was that the North Vietnamese were going to attack, that night. The unit was put on 50-percent alert, which meant one slept, one stood on watch. About 1 oclock in the morning, a fight broke out in a foxhole because the young marine was being molested by his squad leader. To the right of that foxhole, there was a machinegun section that opened up and almost killed a combat patrol that was out in the front.

Now, the natural question is, Okay. Well, fine, dont you have rules that deal with assault? and the answer to thats yes.

The real issue, though, was that, after we sorted this whole thing out, the sergeantthe squad leader essentially said, Look, I was just adjusting his equipment, waking him up because theI thought there was something out to the front. He denied it happened. The young PFC, who was new to the organization, said, Wait a minute. This really happened to me. He was molesting me. The unit took sides, naturally. The squad leader was a popular person, been around for a while. The PFC was a new kid. For about 3 days, that unit divided down the middlethose that supported the popular squad leader, those that kind of thought the new kid might be believable.

The only reason we sorted the issue out was because the sergeant committed the offense about 3 days later. But, the real tragedy of this story is, the young PFC continually insisted, for a long period of time, that nobody in his organization believed it happened. He lost faith in his chain of command.

So, I would argue the case that, if you look atand you can say that Im some old guy thats been around for a while, and beenprobably been around for too long. But, I read

Senator MCCAIN. Youre not the only one that

General SHEEHAN. Wellbut, I read the Defense Departments recently released sexual assault report. And the thing that really bothers me about this issue is that the report saysand this is last years reporttheres been an overall 11-percent rise in sexual assaults in the military; 16-percent rise in Afghanistan and Iraq; 32over 3200 cases of sexualwere not talking about sexual harassment, were talking about sexual assault. Seven percent of those thats about 226male on male assaults, where rape and sodomy took place. And the Department of Defense will clearly indicate that thats an underreporting.

I would stipulate that, from my days in Vietnam in the early 60s, when I had this sergeant that almost got a combat patrol killed, that a226 male soldiers and marines who are molestedthat theres something wrong with our sexual behavior policy.

Pentagon report on homosexual policy buries the lead—the majority of views expressed were against repeal.

by Peter Sprigg

December 3, 2010

When a journalist does not reveal the most important part of a news story until the middle of it, instead of opening with it, its known as burying the lead.

This appears to be what the Pentagon has done with the report of its Comprehensive Review Working Group (CRWG) on the subject of homosexuality in the military.

The report, and most of the media coverage, emphasized the conclusion from a survey of Service members that 70% of Service members predicted it [repeal of the current law] would have a positive, mixed, or no effect.

However, as we have already noted, interpreting the mixed category as being supportive of repeal is questionable at best. Advocates of repeal do not agree that it would affect the military equally as positively as negatively, which is what the mixed response refers to. We could just as easily note that 62% of respondents believed that repeal would have at least some negative effects.

The even more revealing statement, however, does not appear in the reports Executive Summary at all, but only shows up on page 49. Referring to responses in focus groups and other forums which were provided to allow feedback from the troops, the CRWG was forced to admit that our sense is that the majority of views expressed were against repeal of the current policy.

Of course, the report hastily notes that these were not scientifically representative samples of the force as a whole, and the survey was. However, as we must repeatedly point out, the survey did not ask whether respondents were for or against overturning the current law. Hence these less formal media were the only way for the troops to express their views on the central issue.

Whenever you hear that vague and misleading 70% figure, remember that buried lead on p. 49that the majority of views expressed were against repeal.

One Argument Proved, One Argument Refuted by Pentagon Report

by Peter Sprigg

December 2, 2010

There are numerous arguments pro and con on the issue of homosexuality in the military, but the survey of Service members released by the Pentagon on Tuesday has decisively proved at least one argument against the current push to overturn existing law, and decisively refuted at least one argument in favor of that effort.

The Comprehensive Review Working Group report actually identified these arguments in their summary of What We Heard about the issue. One argument against repeal was described as: Why now? We are at war. Many have argued that with our armed forces stretched by the demands of two wars, this is not the time to impose further strain by implementing a radical change in personnel policy to appease a political interest group. (FRC does not believe there would ever be a good time for such a changebut the immediate circumstances are nevertheless a legitimate concern for lawmakers facing an immediate legislative vote).

It has been widely reported that soldiers and Marines in combat arms units were more likely to predict negative impacts from repeal of current law than were other Service members. While 62% of all Service members expected at least some negative results if current law were overturned, the same was true of 74% of all Marines and of Army combat arms soldiers, and 82% of Marines in combat arms units. An outright majority of the latter group, 57.5%, declared bluntly that it would affect their task cohesion either negatively or very negatively, while a minuscule 9% foresaw a positive impact.

The people on the front lines of our wars are the most concerned about repeala compelling argument against it.

On the other hand, the CRWG described the advocates of repeal as arguing, We need everyone willing and able to serve. In other words, the military simply cannot afford to lose the skills of existing or potential homosexual Service members. This is an issue of recruiting and retentionwhat policy will provide the military with the personnel that it needs.

Here again, the results are overwhelming. The surveys showed that the number who would be less willing to recommend a military career if open homosexuality is permitted is four times higher than the number who would be more willing to recommend it. In addition, the percentage who would themselves leave the military sooner than planned or consider doing so if current law is repealed, was more than six times higher than the number who would stay longer or consider doing so.

Its clearthe personnel losses to the military as a result of repeal would vastly outnumber any gains from allowing homosexuals in the ranks.

These are two strong points against the effort to overturn current law, even in a report designed to support that effort.

Media Misses the Story on Pentagon SurveyNegative Responses Outnumber Positive on Virtually Every Question

by Peter Sprigg

December 1, 2010

The Pentagons Comprehensive Review Working Group (CRWG) on the issue of homosexuality in the military, which issued its report yesterday, was extremely selective in the way it crunched the numbers when reporting the results of a survey of Service members. By following the CRWGs lead, the media has missed the biggest storythe fact that more Service members expect negative consequences than positive consequences if the current law is overturned, according to virtually every question that was asked.

You would not know that from the way the findings were reported. Speaking of the possibility of overturning the 1993 law which codified the militarys longstanding ban on open homosexuality in the ranks, they said

70% of Service members predicted it [repeal] would have a positive, mixed, or no effect.

Here is the question on which the 70 percent figure is based:

If Dont Ask, Dont Tell is repealed and you are working with a Service member in your immediate unit who has said he or she is gay or lesbian, how, if at all, would it affect how service members in your immediate unit work together to get the job done? (this is a measure of what they refer to as task cohesion).

The choices for response were:

1) Positively or Very Positively

2) Equally positively and negatively

3) No effect

4) Negatively or Very Negatively

The responses were:

1) Positively or Very Positively: 18.4%

2) Equally positively and negatively: 32.1%

3) No effect: 19.9%

4) Negatively or Very Negatively: 29.6%

The CRWG arrived at the much-repeated 70% figure by adding together the first three categories.

However, the homosexual activists who are pushing for repeal do not argue that there would be equally positive and negative effects. They argue that there would be no negative effects whatsoever, or at least that the positive effects would overwhelmingly outnumber the negative. Therefore, contrary to the way the CRWG and the media have presented it, the equally positive and negative answer should not be taken as supporting the case for overturning current law.

In fact, only answers 1 and 3 (positive or no effect) should be considered supportive of the case that is usually made for repeal. Answers 2 and 4 both indicate that repeal would have negative consequences. Viewed this way, we can argue that

  • 62% of Service members predicted at least some negative effects from repeal, while only 38% predicted only positive or no effects.

However, I would go further and argue that the no effect response does not support the case for repeal, either. I realize that homosexual activists appeal to concepts like justice and equality to argue that if there is no effect, then the law should be changed. But there is no constitutional right to serve in the military, and the exclusion law is fundamentally based on behavior, not identity, so justice and equality are not at stake here.

The only legitimate argument for changing the status quo is if the change would improve the effectiveness of the military as a fighting force. And here, the results of the survey are dramatically clearthose who foresee a negative consequence from repeal outnumber those who foresee a positive consequence on virtually every question. (FRCs analysis of the report is ongoing, but this statement is true of all 53 questions featuring some negative/positive breakdown that are described in Chapter VII of the CRWG report.)

Furthermore, in many cases the ratios of Negative or Very Negative responses to Positive or Very Positive ones were very dramatic. For example, repeal was:

  • More than four times more likely to have a negative than a positive impact on your willingness to recommend to a family member or close friend that he or she join the military (27.3% negative to 6.3% positive).

  • More than six times more likely to have a negative than a positive impact on your military career plans (i.e., intentions to remain in the military)23.7% negative to 3.5% positive.

  • Nearly six times more likely to have a negative than a positive impact on your level of morale (27.9% negative to 4.8% positive).

The report makes much of the fact that those who say they are already working with a Service member in your immediate unit who has said he or she is gay or lesbian give more positive responses. However, it is important to note that even among this group, negative responses outnumber positive ones on every question.

For example, even those currently serving with a gay or lesbian colleague say repeal is:

  • Nearly two and a half (2.48) times more likely to have a negative than a positive impact on your immediate units effectiveness at completing its mission in a field environment or out at sea (37.5% to 15.1%).

  • More than two and a half times more likely to have a negative than a positive impact on your units ability to train well together (26.5% to 10.0%).

To take these surveys as supporting the case for overturning the law is a grave misreading of their findings.

The Best Sex of Your Life

by Peter Sprigg

November 17, 2010

Opponents of abstinence-until-marriage education argue, among other things, that it is unrealistic. As evidence, they point to survey data indicating that a majority of Americans now do, in fact, have sexual relations before marrying.

However, the message of the abstinence movement (and related movements favoring the words purity or chastity) is not so simplistic as to say that if a person loses his or her virginity before marrying, that person is then beyond redemption. On the contrarywhile any premarital sex can have lasting consequences, it is never too late to begin the practice of abstinence/purity/chastity, regardless of ones past mistakes.

A beautiful testimony to that truth appeared November 14 in, of all places, the Washington Post. The story begins like this:

Gareth Warren didn’t know what to think in the summer of 2008 when the grandmother of his godson handed him a book titled “The Best Sex of My Life.”

Then he read the subtitle: “A Guide to Purity.”

She just said, ‘I want to give this to you,’ ” says Warren, who wasn’t exactly focused on sexual purification at that point.

In his dating life, the 26-year-old assistant vice president at GE Capital had always gravitated toward models and cheerleaders. His relationships were usually fun, but ultimately unfulfilling.

Warren gradually became persuaded by the message of the book and changed his lifestyle. Then he was introduced to the young, female author of the book, a medical doctor named Lindsay Marsh.

(Spoiler alert!)

As you might have guessed, Warren and Marsh ended up together, and were married on October 30.

Read the whole story. You can read about Marshs organization, Worth the Wait Revolution, here.

I SwearHomosexual Activists Do the D***edest Things

by Peter Sprigg

November 9, 2010

(Caution: Some of the information below, and the website it describes, are not appropriate for children.)

Some homosexual activists are their own worst enemies.

The latest evidence of that fact is a website recently brought to my attention by someone who wrote to the Family Research Council. I refuse to post an actual link to this website, but you can easily type it in yourself. It follows the form of f**, with letters in the second and third positions.

The beginning of that web address is the three consonants of a well-known four-letter obscenity known as the f-word. The h8 at the end of that address stands for hate.

Homosexual activists have been spelling it h8 ever since the successful 2008 campaign in California to pass Proposition 8, a constitutional amendment defining marriage as the union of one man and one woman. Twenty-nine of the fifty states now have such amendments.

Leave aside, for the moment, the mystery of how treating uniquely the human relationship that is uniquely capable of reproducing the human race, and believing that children deserve a mother and a father, could possibly constitute hate.

If you go to the website, you will find a short (two minutes or so) video. It consists of several people ranting and raving against the opponents of same-sex marriage—while repeatedly dropping the f-bomb.

Is this supposed to be funny? Do homosexual activists really think that the way to persuade opponents of same-sex marriage to support it is—to swear at people? Repeatedly?

During the Proposition 8 campaign, one of the most effective issues for advocates of Prop. 8 was the concern that children would be taught to affirm and celebrate homosexuality and same-sex marriage in the public schools. Opponents vehemently insisted that same-sex marriage would have no impact on schools or on children whatsoever. So then what happened? A class of first-graders was brought to San Francisco City Hall to witness the wedding of their lesbian teacher. So much for the no impact claim.

Another example occurred in the recent debate over legislation that would repeal the current law against open homosexuality in the military. To break a filibuster, liberals had targeted two Republican senators—Susan Collins and Olympia Snowe of Maine. To sway the votes of Collins and Snowe, homosexual activists staged a major rally in Maine the day before the vote. The headline speaker was Stefani Germanotta, the 24-year-old, strangely-dressed, boundary-pushing pop singer better known as Lady Gaga. The effort failed, as Collins and Snowe voted with the rest of the Republican caucus. But did homosexual activists really believe that the gentleladies from Maine would be persuaded by Lady Gaga?

Actually, the point of the anti-H8 web video is not to change minds—its to raise money. You can buy t-shirts, buttons, or stickers bearing the F**H8 message, or milder and less cryptic ones like, Some dudes marry dudes. Get over it. Proceeds will help fund the fight for equal marriage rights.

Five dollars from the sale of each thirteen-dollar t-shirt is donated to one of four pro-homosexual activist groups (none of which sponsor or endorse the website). One is the American Foundation for Equal Rights, which was founded by Hollywood actor and director Rob Reiner (yes, the meathead from All in the Family) to hire Republican and Democratic super-lawyers Ted Olson and David Boies for a federal lawsuit to overturn Proposition 8. So the August decision by Judge Vaughn Walker (now on appeal), that same-sex marriage is a right guaranteed by the U.S. Constitution, was funded (at least in some small part) by f-bombs on the web.

But what is really shocking about the video is this: three of its participants are children. Not teenagers—young, pre-adolescent children. One is a boy who appears to be about six years old. Another is a girl who looks to be perhaps nine. The third is a girl who is perhaps eleven. And yes—the children drop the f-bomb too.

Is this supposed to be funny? Its not. Its child abuse.

Two of the children make specific reference to their gay parents. I dont know if this is true, or if they are just young actors reading a script.

But either way—can they really believe that swearing children are a good tool to expand support for their cause? Are we to understand that this would be the brave new world under gay parenting and same-sex marriage—a world in which parents teach obscenities to their children, then put videos of them using those obscenities on the web to raise money?

If so—God help us. And God save the children.

Anonymous Pentagon Sources Answer Question They Refused to Ask

by Peter Sprigg

October 30, 2010

Heres how an article in the Washington Post today began:

A majority of active-duty and reserve service members surveyed by the Defense Department would not object to serving and living alongside openly gay troops, according to multiple people familiar with the findings.

The surveys results are expected to be included in a Pentagon report, due to President Obama on Dec. 1 … .

The sources who leaked this information, or the reporter who wrote it, or both, are highly biased in favor of the pro-homosexual position on this issue. How can I tell? Because I have seen the survey, and it never asks, Would you object to serving and living alongside openly gay troops?

FRC will soon be releasing a more detailed analysis of the weaknesses of the two surveys (one of service members and one of their spouses). But ever since the surveys were announced and their contents wereagainleaked, we have been criticizing them for failing to ask the most fundamental question of allDo you believe that the current law on homosexuality in the armed forces should be repealed? Instead, the surveys (and the entire study by the Comprehensive Review Working Group) have been premised on the idea that the law will be repealed, and they seek to determine only how such a change should be implemented.

The military is a hierarchical, command-based structure. Therefore, when the Congress, the Commander-in-Chief, possibly the courts, and ones immediate superiors all say that you must serve and live alongside openly gay troops, to object is not an option. You either obey, or you leave.

On that point, the story goes on to say:

Some troops surveyed - but not a majority - objected strongly to the idea of serving with gays and said they would quit the military if the policy changed . . .

Is this how they concluded that a majority … would not object? Its certainly a relief that a majority would not leave, because our armed forces would be destroyed if that happened. But if even ten percent were to leave (as one earlier poll suggested), it would have a devastating impact on our military.

Check for our more detailed critique of these surveys in coming weeks.

In the Military, Racial Integration and Sexual Liberation Are Not the Same Thing

by Peter Sprigg

October 22, 2010

Mark Thompson has posted a piece on Time magazines Swampland blog regarding the possible overturning (which he considers inevitable) of the current law against homosexual conduct in the military.

Such a radical change in military policy is hardly inevitable. Legislation to repeal the law is on life support following last months Senate vote to block it, and Judge Virginia Phillips muddled ruling that the law is unconstitutional ignored so much existing precedent that it is unlikely to be upheld.

Thompson, however, has delved into the archives of military history and relates findings about how African Americans were integrated within the armed forces without major difficulty. He concludes that the integration of homosexuals would take place just as smoothly.

One key difference, of course, is that blacks had long been eligible to serve in the military, but had served in segregated units. In contrast, homosexuals have always been considered ineligible for military service at all. (The popular misnomer Dont Ask Dont Tell misleads many into believing that active homosexuals are currently welcomed by the military as long as they stay in the closet. The truth is the oppositethe 1993 law mandates, with very limited exceptions, the discharge of any servicemember who has engaged in, attempted to engage in, or solicited another to engage in a homosexual act or acts.)

Furthermore, Thompson simply assumes the answer to two critical threshold questions:

1) Is being gay like being black?

2) Is sexual conduct relevant to military effectiveness?

The logical answer to #1 is no. Homosexuality is a behavioral characteristic; being black is a superficial matter of skin color. The racial integration of the military was successful precisely because it proved that the behavior of black soldiers did not differ from that of whites. But with homosexuality, a difference in behavior is what defines the issue. Do not be fooled by vague references to sexual orientation as though it were an innate characteristicwhat homosexual activists now seek is the right to continue engaging in homosexual acts while in the military .

Homosexual activists compare sexual orientation to race in order to obscure the important differences between sexual attractions, behavior, and self-identification. Only the attractions are, like race, involuntary; but none of these elements of sexual orientation are (like race) inborn, immutable, innocuous, and in the Constitution. The 1993 law which homosexual activists seek to overturn is focused on homosexual conduct, and treats attractions or self-identification as relevant only because they are evidence of a propensity or intent to engage in homosexual acts.

So does the military have a legitimate interest in regulating the sexual conduct of its members? The answer has always been yes, with respect to heterosexual conduct as well as homosexual. Adultery, for instance, remains a crime in the military, at a time when the civil law has long since become indifferent to it. As Congress found in 1993, high standards of morale, good order and discipline, and unit cohesion … are the essence of military capability, and there is no doubt that sexual conduct can threaten those standards and harm that capability.

Sexual tension, sexual harassment, and sexual assault are problems that exist among heterosexuals in the militarybut those problems would increase if homosexuals were allowed to serve, because it would be impossible to separate homosexuals the way that men and women are separated in their most intimate settings (showers, sleeping quarters, etc.). Increased health problems among homosexuals (in particular, dramatically higher rates of sexually transmitted diseases such as HIV among men who have sex with men) would pose a direct challenge to military readiness.

The analogy to the racial integration of the military, even if it had any validity, would apply only to the concern that homosexuality in the military would damage recruiting and retention of personnel. But those are only two out of the nine likely negative consequences of repealing the current law that were identified by Col. Robert Maginnis in the FRC booklet Mission Compromised. The others are:

  • Damage to unit effectiveness.
  • Health consequences with high cost.

  • Threats to freedom of those who morally object to homosexuality.
  • Special protections for homosexuals.
  • Taxpayer-funded benefits to homosexual partners of servicemembers.
  • Possibility of costly new living arrangements to protect privacy.
  • Changes to military law and regulations regarding sexual offenses.

The argument that, as the gay newsmagazine The Advocate recently declared on its cover, Gay is the New Black, is one that most blacks resent, and that simply cannot stand up to serious scrutiny.

Why Would Republican Leaders Address the Lincoln Was Gay Crowd?

by Peter Sprigg

September 21, 2010

Sen. John Cornyn and Rep. Pete Sessions have come under criticism recently (including from FRC President Tony Perkins) over their decision to help the Log Cabin Republicans (LCR) raise money to elect pro-homosexual candidates by speaking at an LCR event on September 22. Those who bought tickets to the event were clearly told that the proceeds benefit LCR PAC.

The Log Cabin Republicans have been at the forefront of trying to mainstream radical homosexual activism within the Republican party. They have tried to perpetuate (and Cornyn and Sessions seem to have fallen for) a myth that they are faithful Republicans who only have a small quibble with conservatives on issues involving homosexuality. But LCRs refusal to even support George W. Bush for re-election in 2004 is but part of a large body of evidence that LCR is far out of the Republican mainstream.

In fact, this might be a good time to remind people why the group call themselves Log Cabin Republicans in the first place. The LCR website says, The name of the organization is a reference to the first Republican President of the United States, Abraham Lincoln, who was born in a Log Cabin. President Lincoln built the Republican Party on the principles of liberty and equality.

However, there is a double entendre to the name. Homosexual activists also recognize it as an allusion to the fanciful but persistent theory that Abraham Lincoln himself was gay. For example, when presidential candidate Bob Dole returned a campaign contribution from the LCR in 1995, one prominent Log Cabin Republican, W. Scott Thompson, declared that homosexuals should be welcomed in the party, given that the founder was gay.

Supporters of the Lincoln was gay theory usually cite the well-documented fact that for several years, he shared a bed with a man named Joshua Speed. Anachronistically, they project 21st century concepts of gay life and behavior back into the 19th, ignoring the fact that sharing a bed with a same-sex roommate, with no sexual implication, was common at that time.

Proof that Lincolns relationship with Speed was innocent comes from Doris Kearns Goodwin’s excellent book, Team of Rivals.

Goodwin is a veritable Massachusetts liberal. She may even support Massachusetts’ Supreme Judicial Court’s far-fetched ruling that permits men to marry men. But she draws the line at suggestions that Lincoln had homosexual feelings for Joshua Speed.

The proof? In December, 1864, President Lincoln nominated Joshua’s older brother James Speed for Attorney General of the U.S. In a letter to the Senate formally naming the elder Speed, Lincoln said he knew the Kentuckian, but not as well as Joshua Speed “with whom I shared a bed in Springfield for several years.”

If there were anything remotely sexual in that comment, Lincoln would hardly have been likely to tell all his fiercest political opponents about it. The Senate Judiciary Committee was then, as it is now, a hotbed of partisan rivalries.

Sen. John Cornyn should not have agreed to help the Log Cabiners with a fund-raiser in any event. But if he knew his Lincoln better, he would be offended at the group’s sly innuendo about the Great Emancipator.

Does Lawrence v. Texas Imply a Right to Same-Sex Marriage?

by Peter Sprigg

August 6, 2010

This week San Francisco federal Judge Vaughn Walker, in the case of Perry v. Schwarzenegger, ruled that the U.S. Constitution protects a right of same-sex couples to marry. This has sparked speculation about how the case might fare on appeal if and when it reaches the Supreme Court. Some commentators argue that the courts decision striking down sodomy laws, in the 2003 case of Lawrence v. Texas, implies that the court would also back same-sex marriage. I wrote on that subject in 2004, and below are my observations, with quotes from the opinions in Lawrence.

The nuclear bomb of the homosexual marriage movement would be a decision by the United States Supreme Court declaring that it is unconstitutional to deny homosexual couples the benefits, or perhaps even the actual status, of civil marriage.

The likelihood of such a ruling appeared to increase exponentially when the Supreme Court struck down state laws against homosexual sodomy in the case of Lawrence v. Texas, which was decided on June 26, 2003.

Dissenting justice Antonin Scalia warned as much in his scathing dissent:

State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestialiy, and obscenity are likewise sustainable only in light of Bowers’ validation of laws based on moral choices. Every single one of these laws is called into question by today’s decision: the Court makes no effort to cabin the scope of its decision to exclude them from its holding.[i]

However, a close examination of the majority opinion seems to cast doubt on Scalias sweeping claim that there was no such effort to cabin the rulings scope. For example, Justice Anthony Kennedy’s decision says this:

The laws involved in Bowers and here … seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals.[ii]

In other words, he concedes that these relationships may not be “entitled to formal recognition,” i.e., marriage. He goes on immediately after to say:

This, as a general rule, should counsel against attempts by the state, or a court, to define the meaning of the relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects.[iii]

Presumably he’s speaking of marriage here, and accepting that same-sex marriage, like adultery, might constitute abuse of an institution the law protects. Then in his conclusion, Kennedy again says:

The present case … does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.[iv]

Likewise, in her concurring opinion (basing her decision on equal protection considerations rather than privacy and due process), Justice O’Connor wrote:

That this law as applied to private, consensual conduct is unconstitutional under the Equal Protection Clause does not mean that other laws distinguishing between heterosexuals and homosexuals would similarly fail under rational basis review. Texas cannot assert any legitimate state interest here, such as national security or preserving the traditional institution of marriage. Unlike the moral disapproval of same-sex relations—the asserted state interest in this case—other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group.[v]

In referring to national security or preserving the traditional institution of marriage as a legitimate state interest, she seems to be clearly saying that this case does not involve gays in the military or homosexual marriage.

Scalia, though, remained skeptical:

This reasoning leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples. Justice O’Connor seeks to preserve them by the conclusory statement that preserving the traditional institution of marriage is a legitimate state interest. But preserving the traditional institution of marriage is just a kinder way of describing the State’s moral disapproval of same-sex couples.

Although I greatly respect Justice Scalia, I dont fully agree with this last sentence. As I have noted earlier, opposition to homosexual marriage does not have to be grounded only in disapproval of homosexual couples, but can rest in the recognition that their relationships are by nature something different from marriage.

While the majority opinion did have passages that appeared to distinguish the issues in Lawrence from those involved in marriage, yet other passages did indeed hint at a link. For example, Kennedy said:

When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.[vi]

In another passage, Kennedy cited the 1992 decision in Planned Parenthood of Southeastern Pa. v. Casey (which upheld a right to abortion). Kennedy declared:

The Casey decision again confirmed that our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education.

He then went on to state, Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.[vii]

Legal scholars on the other side of the debate have drawn very similar conclusions to Scalias. Liberal Harvard Law professor Laurence Tribe says, Same-sex marriage, as Justice Scalia predicted in his outraged dissent, is bound to follow; it is only a question of time… . [T]he underlying theory and most important passages of Lawrence suggest ready (though not immediate) applicability of the holding to same-sex marriage … .[viii]

In summary, a close reading of the Lawrence decision suggests that advocates of same-sex marriage could claim that it serves as precedent for same-sex marriagebut it would not inevitably do so.

[i] Lawrence et al. v. Texas, 123 S. Ct. 2472 (2003): 6 (page numbers cited are from the respective opinions as published in the initial Bench Opinion).

[ii] Ibid.

[iii] Ibid.

[iv] Ibid., 17-18.

[v] Ibid., 7.

[vi] Ibid., 6.

[vii] Ibid. (Kennedy), 13.

[viii] Laurence H. Tribe, Lawrence v. Texas: The Fundamental Right That Dare Not Speak Its Name, 117 Harvard Law Review (April, 2004): 1945, 1949