The institution that forms the very basis of self-government could soon be redefined, not through the legislative process and contrary to the express will of the people, by two wholly unaccountable powers – judges appointed to lifetime seats and activist cultural forces including the press and entertainment industry.

The institution is marriage, as it has been defined throughout the history of Western civilization, the biblical Judeo-Christian ethic, common law and natural law.

Defined in the Bible as the union of one man and one woman, marriage has been practiced that way by most well-functioning societies in the world whether or not they are Judeo-Christian in orientation. The notable exceptions are Muslim nations, some of which affirm polygamy as an option. For instance, polygamy is virtually unknown in China, where there are no laws prohibiting it, and equally scarce in India where it is illegal.

But the raging debate in the U.S. today is not about polygamy. It’s about redefining marriage to permit people of the same sex to wed legally. Perhaps “debate” is not the right word for what is taking place – because intelligent discussion and dialogue on the topic are hardly encouraged in what we euphemistically call the “mainstream media.” Nor is there much tolerance for a status quo position on marriage in the entertainment industry, which probably exerts an even more powerful influence on the opinions, attitudes and morals of its consumers.

America, however, after years of voting affirmatively to keep the definition of marriage as the union of one man and woman in 31 states, seems poised to accept a redefinition by federal judges, who have thus far shown a willingness – perhaps even eagerness – to assert such authority.

Recently, for instance, Judge Richard Posner of the 7th Circuit Court of Appeals was part of a three-judge panel that unanimously struck down laws in Indiana and Wisconsin that affirmed marriage as a union between one man and one woman. Posner said that these duly enacted laws were indicative of “a tradition of hate” and “savage discrimination.”

Appointed by Ronald Reagan, Posner is known for some pretty outrageous decisions and opinions:

  • He wrote “that the rule of law is an accidental and dispensable element of legal ideology.”
  • He argued that buying and selling children on the free market would lead to better outcomes than the present situation, such as government-regulated adoption.
  • He supported the legalization of not only marijuana but LSD.
  • He has written several opinions in favor of unrestricted abortion and one defending the constitutionality of “partial-birth abortion,” in which the baby is killed during the delivery process.

He’s a disciple of Friedrich (“God is dead”) Nietzche and generally perceived as a moral relativist – meaning he is skeptical about the idea that there are any absolutes when it comes to right and wrong.

The question before Americans today is whether or not they are content to be part of an oligarchical society in which they are ruled by pronouncements by people like Posner.

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He found that laws defining marriage as it has been defined by the Bible since the beginning of time represent a denial of “the equal protection of the laws.”

“One wouldn’t know, reading Wisconsin’s brief, that there is or ever has been discrimination against homosexuals anywhere in the United States,” he wrote. “The state either is oblivious to, or thinks irrelevant, that until quite recently homosexuality was anathematized by the vast majority of heterosexuals (which means, the vast majority of the American people), including by most Americans who were otherwise quite liberal. Homosexuals had, as homosexuals, no rights; homosexual sex was criminal (though rarely prosecuted); homosexuals were formally banned from the armed forces and many other types of government work (though again enforcement was sporadic); and there were no laws prohibiting employment discrimination against homosexuals.”

Before we go any further, let me address those points:

  • Defining marriage as the union of one man and one woman is only discriminatory to those who wish to form some other union and call it “marriage.” In other words, the until-now accepted definition of marriage has restricted the institution to couples of the opposite sex. No one, in any state, asked people who were about to get married about their “sexual orientation.” Thus, if a gay man or lesbian wanted to get married to a member of the opposite sex, they were free to do so. If they didn’t want to do so, there was no compulsion to do so. Likewise, if they want to form some other kind of union with their partner, no one would stop them. Such marriage laws, however, do prohibit unions of more than two people. There is absolute discrimination there by definition – but I haven’t heard Posner or many other legal scholars try to strike down laws based on that overt form of discrimination. This strikes me as odd, given the fact that the second-largest religion in the world not only permits it but encourages it and that there are far more polygamous “marriages” in the world than there are same-sex marriages. If so-called “discrimination” is the basis for redefining marriage, where is the outcry against discrimination against polygamists and would-be polygamists?
  • Discrimination against certain kinds of behavior, like sodomy, for example, is the very basis of almost all laws – drivers who are prone to speed and run red lights, people who steal, those who commit assault and battery, those who molest children, those who carry guns into airports and, lately, those who prefer not to be a part of same-sex weddings as florists, cake-makers, caterers, photographers and videographers for their own reasons, including their supposedly protected heartfelt religious convictions. In a free, constitutional republic, laws are made or overturned on the basis of public opinion through representative government. They are not dictated by unaccountable judges appointed to lifetime jobs at the expense of taxpayers who have no say.

But Posner – like many other federal judges who have overstepped their authority – is hardly finished in his zealotry.

He writes: “Heterosexuals get drunk and pregnant, producing unwanted children; their reward is to be allowed to marry. Homosexual couples do not produce unwanted children; their reward is to be denied the right to marry. Go figure.”

Posner, who, until now has been a staunch defender of unrestricted abortion on demand, oddly suggests a benefit of same-sex marriage will be fewer abortions: “The more willing adopters there are, not only the fewer children there will be in foster care or being raised by single mothers but also the fewer abortions there will be.” If there is no state interest in fewer abortions, as he has suggested in his previous decisions, why would this be an upside?

This is the kind of unhinged incoherence we have witnessed in many such judicial rulings on same-sex marriage.

All of this legal wind-baggery raises a question as important as whether we still believe the institution of marriage, as it has been known from time immemorial, is the cornerstone of a functioning self-governing society: Are we ready to dismiss the role of the American people in their own governance?

Related column:

No, you don’t have the right to marry anyone you choose by Dr. Jane Orient

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