Barton: Marriage Equality is Unconstitutional

David Barton delivered a delightfully whacky explanation of his position that it would be unconstitutional to allow same-sex marriage. It’s the same argument Alan Keyes likes to make, that since the Declaration of Independence mention’s a creator, anything that their God allegedly disapproves of can’t be made legal. And he throws in some more specific idiocy along the way:

From a constitutional standpoint, you cannot exclude morals. A number of conservative libertarians in recent months have been saying “hey, marriage is not a constitutional issue” … yet it is because Article 7 of the Constitution through the attestation clause incorporates the Declaration [of Independence] into the Constitution.

Uh…what? Here is Article 7 of the Constitution, in its entirety:

The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.

That has absolutely nothing to do with incorporating the Declaration of Independence. Now I’m one of those people who does think the Declaration should be used in constitutional interpretation because it does lay out broad principles about the legitimate actions that may be taken by government, but that certainly does not support Barton’s argument, for reasons I’ll explain later in this post. Now here’s his second bizarre argument:

The Declaration erects the moral standard by talking about the laws of nature and of nature’s god. Marriage has always been defined not only as a law of nature – now, it’s not necessarily in nature, but they called it a natural law that you should be married to one man, one woman because that is what divine law says; the laws of the god who created nature, the law of nature’s god even in the very beginning said one man, one woman, this is good. Jesus reiterated that in Matthew 19 and other places.

So the moral standard, the moral law dictates that marriage is between and man and a woman. That was then incorporated into the Constitution in the Seventh Amendment in what was called the common law. The common law is part of the legal process. And if you look at the common law all the way through time, marriage has been part of the common that. That is why you do not allow bigamy or polygamy or other forms of “igamy” that attack marriage. Marriage is a man and a woman as part of the common law that’s part of the Constitution.

Another howler. Here’s what he’s talking about. The 7th Amendment does mention the common law, but only in relation to lawsuits:

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

It’s true that some aspects of the British common law remained in force as the law of the land after the passage of the Constitution, but mostly in relation to torts. And it’s true that the British common law did incorporate a good deal of moral law that we now reject. But this argument that because some parts of the common law remained in place until replaced by new statutes, therefore the Bible should determine the limits of behavior that may or should be allowed is utterly idiotic.

If the Bible is the test of what can and can’t be allowed, then the First Amendment must go. The Bible quite explicitly forbids worshiping other gods — it’s right there in the first of the ten commandments. By Barton’s “reasoning,” religious freedom must be gone and the First Amendment must apply only to Christians. By the way, here is what Thomas Jefferson had to say about Christianity and the common law in an 1814 letter to Dr. Thomas Cooper:

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