@Celestial_Teapot - (1)(a) The problem with this argument is that it assumes all personal moral philosophies are equally legitimate under the law, have an equal rational basis outside purely subjective morality, and have equal legitimacy in terms of their success throughout American history. That is not the case. Furthermore, this country is not a pure democracy. It’s not true that we live in a society where local, state, or federal legislators can pass legislation to effectuate their majoritarian principles freely. We live in a society of law, and while the law often changes, many fundamental legal principles remain generally the same. For example, when state legislators pass legislation that violates the Due Process Clause or Equal Protection Clause, federal courts have an obligation to strike down the law in its entirety or its unconstitutional provisions. Thus, the moral principles in that unconstitutional law are subordinate to the constitutional principles enforced by the court. 

This is by design. When you read the Federalist Papers, you see the various authors state time and time against that they believe the morals of society are fickle and constantly changing (which your examples demonstrate). This is true, despite what conservatives believe (e.g., evolution and abortion were really not major galvanizing issues until the mid-1980′s, when the Reagan Administration and Evangelicals began entwining certain social and scientific issues with politics). The Constitution was originally meant to “enshrine” a select set of fundamental principles and make them inviolable, or at least paramount. The Founders worded many of these constitutional principles relatively vaguely, so that they may evolve with society itself, but it’s clear that their intent was never, for example, to have society interpret “equal protection under the law” to, say, permit courts to sentence only black people to death for misdemeanors.  

Similarly, it’s also important to note, in terms of legitimacy of particular worldviews, that conservatives have been consistently trying to limit personal freedoms to non-heterosexual white males for several hundred years with very little success. This trend, in and of itself, reveals that there is something fundamentally un-American and unconstitutional about their core value system according to the people who have dictated the course of American legal values. Whether it’s miscegenation, the fight to retain Jim Crow laws, the fight to prevent women from voting, or their battle to repeal employment discrimination laws, the conservative world view has consistently been rejected by courts and lawmakers alike (not always in that order). That’s because their beliefs generally violate the plain meaning of the Constitution, the legislative intent of the Founders (of what surprisingly little we know), and how courts currently and will likely interpret clauses like the Equal Protection Clause in the future (which has expanded from protecting only African Americans to now protecting all kinds of classes, including women inter-state travelers).

(1)(b) Scalia isn’t an idiot, but he is certainly an extreme ideologue, which has a profoundly debilitating effect on the quality and credibility of his opinions. Seriously, if you Westlaw or Nexis search “critique + Scalia,” you will get about a million results, many of which are from legal scholars that are much more respected than Scalia on the issues being discussed. Honestly, a large part of the law school experience is getting to mock Scalia’s poor reasoning and complete disregard for legal precedent when it suits his personal morality (which, ironically, defeats his argument that originalism/textualism constrains judicial activism). This is most evident in cases like Heller, Bush v. Gore, and other cases where Scalia ruled against democratically enacted legislation (embodying the moralities of the legislators) after ignoring legal doctrines the Court is supposedly bound by that are designed to encourage judicial deference to the legislative branch (e.g., the Political Question Doctrine should have forced a staunch proponent of stare decisis like Scalia to refrain from adjudicating Bush v. Gore according to Erwin Chemerinsky and numerous other constitutional law scholars). 

(2) This argument is less interesting to me, largely because there is virtually no compelling evidence to support it. Like any argument without virtually any evidence, it can be ignored or given very little weight compared to competing opinions that are better substantiated. That being said, there are several flaws with it:

(a) The harms that conservatives fear children will experience in same-sex households are, generally, either (i) they will be bullied and/or ridiculed by intolerant members of society, or (ii) they will not have a strong male/female presence in the family (whichever is lacking in the homosexual couple). 

The first argument is essentially self-defeating. Assuming that every child with gay parents has these experiences (there’s no evidence that they do to any significant degree), the argument implicitly admits that homophobia and bigotry are the harms children in same-sex households will experience. Thus, as we did with the conservatives who fought against desegregation efforts “for the good of the blacks,” we shouldn’t limit personal freedoms to protect and promote the bigotry of others. That’s a nonsensical and backwards policy, and furthermore, there is no constitutional basis for this argument in either the plain text of the Constitution or its spirit. Rather, we should promote equal rights for minorities in an effort to defeat the ignorance that has animated many conservative social positions in the past. That way, in the future, being gay doesn’t come attached with an irrational, negative social stigma. By promoting same-sex couples in the same way we promoted women voting or blacks integrating with whites, we will stigmatize bigotry instead of stigmatize homosexuality.    

The second argument simply makes too many assumptions to be taken seriously and conflicts with the very gender stereotypes conservatives promote outside of this argument. For instance, why is it simply assumed that no homosexual couples have extended family members (or friends) of the opposite sex who can play a major role in the child’s life and fulfill those gender-based needs? Why is it assumed that a child needs a male/female presence at all? That is, why can’t the “butch” lesbian provide all the “male input” the child needs? There’s really no reason for conservatives to make these assumptions, and there is certainly no compelling evidence supporting these assumptions (the overwhelming evidence indicates that children in sex-same households are just as happy as those who grow up with heterosexual parents).

@grim_truth - The problem is that these arguments simply are not very good and, among other things, merely assert subjective valuations without evidence and without legal justification (e.g., promoting procreation has consistently been rejected by modern federal courts as a compelling state interest–”compelling state interest” has been viewed very narrowly by federal courts in Equal Protection  and Due Process analyses; the article merely assumes that homosexual marriage doesn’t promote procreation through indirect means, such as fertilization; etc.). 

But rather than writing a lengthy post about why this graduate student’s (not an expert) arguments are crippled by his ignorance of the law underlying his arguments, I will just post some articles that have effectively debunked some of his premises: (1) and (2).    

@gokellyjo - Certain aspects of what you’re saying have no basis in American law or history. That’s the issue. 

First, you seem to believe that “Holy texts” (whatever that includes) only have one interpretation/one absolute truth and are not capable of differing interpretations or negative “truths”. That’s simply not accurate. My point isn’t that the Bible is “bad” or that it is inherently dangerous, like some atheists believe, but rather that most religious texts simply aren’t capable of providing “absolute truth” for the vast majority of socio-political problems in this world that is uniform among large groups of people. 

In fact, the reason why the texts of many major religious groups are so successful is precisely because they lend themselves to many different interpretations and messages, which broadens their appeal to different people with different interests, different needs, and different life experiences. That’s why, for example, there are both Christians who use the Bible to support hippy ideals and Christians who use the Bible to support war indiscriminately nuking Iran.

Second, you seem to believe that the “absolute truth” you have derived from the Bible is shared by all Christians now and in America’s history. That’s simply not true. American Christians have used the Bible to promulgate legislation or engage in actions that, among other things, denied women the right to vote, legalized slavery, enacted Jim Crow laws, created xenophobic and racial groups like the KKK, supported wars that entailed the killing of innocent civilian children, supported the murder of abortion providers, fought desegregation efforts, fought miscegenation and bi-racial marriages, etc. Other Christians, past and present, have certainly used the Bible to oppose types of prejudicial behaviors, but many of their beliefs have been or continue to be in the minority among certain groups of people and in certain geographic areas. Regardless, these inconsistencies provide some evidence that, in practice, the Bible provides little no “absolute truth” as concrete and broad as you seem to believe.  

The truth of the matter is that Christian’s interpretation of the Bible has changed drastically throughout American history for many of the same reasons our interpretation of the Constitution has changed throughout the centuries, including the fact that American moral and ethical values have changed. Those changes are largely attributable to non-religious sources, including popular secular philosophy, economic concerns, and the Constitution. 

Third, in this country, neither the Bible nor other religious texts are our universal absolute truth. The rule of law is the closest thing we have to an absolute truth, and the rule of law is not absolute in any meaningful sense (for reasons discussed above). Furthermore, the rule of law is not dictated by the Bible or other religious books, and it never has been. There are some jurists, like Scalia, who have tried to fashion new law that codifies their religious values or interpret existing law in the light that is most conducive to their religious beliefs, but the vast majority of laws and regulations are driven by secular concerns (e.g., natural resource conservation, economics, principles like equality that don’t necessarily have a religious basis, etc.) The bottom line is that the Bible has been used to support historically wrong-minded legislation that limited equality and freedom in the past (e.g., slavery). If religious people want to limit equality to homosexuals, they need to come up with secular defenses of those beliefs, because the Bible doesn’t have a great track record. 

Lastly, it’s easy to come up with secular justifications for limiting behaviors like prostitution (e.g., having hookers walking about lowers property values, child prostitution is encouraged, prostitution has historically been linked with criminal organizations and illegal drugs use, etc.) It’s much more difficult to find those types of justifications with restricting gay marriage, which has virtually no tangible negative effects on society apart from offending the personal religious values of some Christians. Similarly, citing Michigan’s adultery laws doesn’t really suit your purposes because the law isn’t enforced by modern courts. That would seem to indicate that the law doesn’t represent the “absolute truth” you seem to believe in (because courts simply ignore it in proceedings). These laws aren’t enforced by state courts because, in part, they are clearly unconstitutional. Because courts stopped enforcing them, state legislators had no reason (other than symbolic reasons) to repeal them. As a result, they remain “the law” on paper, but they aren’t “the law” in practice. Society has progressed and rejected those archaic values as part of its adoption of more progressive values (which will likely also change in the future).