Federal Judge Confuses Declaration with Constitution and Much More

What’s becoming an epidemic of immoral fiat, a federal judge struck down Virginia’s ban on same-sex marriage and got her Constitution and Declaration of Independence mixed up at the same time. The big story is that she made a huge historical mistake and not that she ruled against the Virginia constitution, the will of the people, history, and the law of God. No big deal.

It’s not so confusing that she was confused since she’s just as confused about what sexual organ goes where. It’s a telling self-indictment of morality, logic, reason, and biology.

In her ruling, Arenda Wright Allen of the United States District Court for the Eastern District of Virginia, wrote in her original opinion, “Our Constitution declares that ‘all men’ are created equal. Surely this means all of us.” Of course, it’s the Declaration of Independence not the Constitution that includes the phrase “all men are created equal.”

I doubt that those who signed the Declaration of Independence had same-sex marriage in view. Historical accuracy and historical context are important in these matters, More about this below.

When the obvious error had been pointed out to her, Allen issued a second draft: “Our Declaration of Independence recognizes that ‘all men’ are created equal.” Again, what this has to do with homosexual marriage is beyond me.

South Texas College of Law professor Josh Blackman pointed out that the words “all men” are included in the Virginia Constitution: “all men are by nature equally free and independent and have certain inherent rights.”

The question remains, is same-sex marriages an “inherent right,” and how do we know? Let’s go back to the Declaration, which states:

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

Notice the use of the designation “Creator.” Judge Arenda Wright Allen used the word “created.” Something created requires a Creator. The Preamble to the Declaration is based on the “Laws of Nature and of Nature’s God.”

These rulings by judicial and moral fiat are the very things our founders rebelled against. They noted that the Creator who gave us certain “unalienable Rights” is the “Supreme Judge of the world.”

But even if the judge got her documents right, there is no way that those who signed the Declaration of Independence and the Constitution had same-sex sex in mind.

For example, consider Thomas Jefferson, the main author of the Declaration of Independence:

The following is from A Patriot’s History of the United States by Larry Schweikart and Michael Allen:

“[Thomas] Jefferson wrote the Virginia Sabbath law, as well as ordinances sanctioning public days of prayer and fasting and even incorporated some of the Levitical code into the state’s marriage laws.” (97).1

In addition, “A Bill for Proportioning Crimes and Punishment in Cases Heretofore Capital,” one of 126 Bills submitted to the Virginia Assembly in 1779 (three years after the Declaration of Independence was drafted and signed) by the Committee of Revisors, states the following:

“Whosoever shall be guilty of Rape, Polygamy, or Sodomy with man or woman shall be punished, if a man, by castration, if a woman, by cutting thro’ the cartilage of her nose a hole of one-half diameter at the least. (Bill 64)

The committee was headed by Thomas Jefferson. The members worked two years revising the colonial laws as Virginia was no longer obligated to follow the laws of England.

Then there’s George Washington. At a General Court Marshall, on March 10, 1778, a Lieutenant Enslin was “tried for attempting to commit sodomy with John Monhort.” He was also tried for “Perjury in swearing to false Accounts.” Enslin was “found guilty of the charges exhibited against him, being breaches of 5th. Article 18th. Section of the Articles of War.”

He was dismissed from the service “with infamy. His Excellency the Commander in Chief [George Washington] approve[d] the sentence and with Abhorrence and Detestation of such infamous Crimes order[ed] Lieutt. Enslin to be drummed out of the Camp . . . by all the Drummers and Fifers in the Army never to return.”2

Let me be clear. These historical references ultimately do not matter. Today’s courts no longer have a moral reference point. There are a few justices — Scalia, Thomas, and maybe Alito — who believe in the long legal tradition of Natural Law. But they are a diminishing minority.

  1. Report of the Committee of Revisors Appointed by the General Assembly of Virginia in MDCCLXXVI. Published by Order of the General Assembly, and Printed by Dixon & Holt, in the City of Richmond (November 1784), 90 pages folio. The Report was presented June 18, 1779 by Thomas Jefferson and George Wythe. Five hundred copies were ordered to be printed June 1, 1784. []
  2. The Writings of George Washington, Bicentennial Edition (Washington, DC: U.S. Government Printing Office, 1934), (March 1 through May 31, 1778), 11:83-84. For a fuller accounting of this and a previous incident, go here. []