Daily Progress Calls Founding Fathers Un-American

Virginians, it seems, have a natural proclivity to justify whatever their agenda is by looking to Revolutionary history. This is understandable considering the panorama of great minds of that era who called Old Virginny their home and their country. Also, because of the diversity and contradictions of these minds, it is possible for any political perspective to look back and find something they agree with. To oppose the other, Marshall had his Mason; Madison had his Henry; and the paradoxical Jefferson had his Jefferson.

But sometimes our attempts to use the past as a precedent for our preferred present are dead wrong. Floyd Hurt has committed historical sins upon Jefferson, Mason, and Madison in his latest column in the Daily Progress by using their language as incontrovertible proof that same-sex marriages must be legal in the Old Dominion.

He writes (quoting Obama not Jefferson),

“The Declaration of Independence holds ‘… truths to be self-evident, that all men are created equal, that they are endowed with [sic] certain unalienable rights, that among these are Life, Liberty and the pursuit of happiness [sic].'”

Hey, Mr. Hurt. In case you were wondering, it’s “endowed by their Creator.” Also, and much less egregious, it’s “Happiness.”

Next the Virginia Declaration of Rights:

“The Virginia Declaration of Rights says that ‘all men are by nature equally free and independent and have certain inherent rights …,’ including enjoying life and liberty and pursuing and obtaining happiness and safety. It also says that ‘it is the mutual duty of all to practice Christian forbearance, love and charity toward each other.'”

Notice how the liberal Mr. Hurt forgot the part about “the means of acquiring and possessing property?”

He continues,

“There can be no ‘rational’ misunderstanding in these foundational ideas. To deny anyone his or her liberty to marry and find happiness is a clear violation of these fundamental precepts…Politicians and religious establishments denying these rights are, by definition, un-American, and are clearly and profoundly pandering to a narrow sector of society. If they deny others their rights, they have no legitimate foundation to hold office or pretend to understand the word of God.”

Apparently, according to Mr. Hurt, Thomas Jefferson, James Madison, George Mason, the entire Revolutionary congregation, and quite possibly Jesus Christ himself held it as an inviolable right for homosexuals, not only to engage in homosexual conduct, but to enjoy the same legal recognition of the state — in marriage and social standing.

Dead Wrong.

Mr. Hurt would make his argument better by claiming society has “evolved.” In fact, that’s the only way he can make the argument. Using Revolutionary Virginia as a philosophical justification for any marriage not between one man and one woman is wholly and utterly grotesque.

First of all, there are no precedents in this time period for the discussion of same-sex marriage, just as there is no precedent for a so-called “reverse inheritance.” It was a contradiction in terms and considered in itself an irrational idea, not to mention unnatural. The idea of marriage in English society was formed out of centuries of canon law — Biblical instruction and Church precedent — and to a much smaller extent the needs of the state. To accept the idea of homosexual marriage required an acceptance of homosexual conduct.

So the question Mr. Hurt must ask is not whether Samuel Davies would have presided over a homosexual marriage.[1] It is whether any of the founders would have sanctioned or protected any sexual activity or attraction between members of the same sex. The answer is a resounding “No.”

Laws in America against homosexuality are as old as the colonies themselves. In the Virginia Company’s Lawes Divine Morall and Martiall, Jamestown colonists were ordered, “No man shal commit the horrible, and detestable sins of Sodomie upon pain of death.”[2] This crime and punishment was quite consistent with existing English law. Under Henry VIII, it was enacted that “the Vice of Buggery…shall suffer such pains of death and losses and penalties of their good chattels debts lands tenements and hereditaments as felons do according to the Common Laws of this Realme.”[3] In other words, homosexuals (especially male homosexuals) were by their conduct subject to a loss of life, liberty, and property despite the private nature of their offense. In early Virginia, there is at least one case of someone being executed for these “crimes against nature.”[4]

William Blackstone, the foremost constitutional scholar of the Revolutionary era regarded with equal approbation by Americans and Britons, held a similar view in his commentaries on English law. He (and British common law) thought sodomy worse than rape, and deserving of a punishment “inferior only to that of the crime itself … This the voice of nature and of reason, and the express law of God, determine to be capital.”[5]

While this may show that society before the Revolution felt it perfectly acceptable — and necessary — to restrain “Unnatural filthiness”[6] it does not directly refute Mr. Hurt’s claim that the more liberal Americans of the Independence era wanted a tolerant society that embraced the idea of homosexual conduct and divested in the state a directive to sanction among them contracts of marriage.

So what would Jefferson say? Perhaps he was a little more merciful than Blackstone and the rest of American Lawmakers. In 1777, he undertook the task of revising Virginia’s laws to reflect an independent state. In an outline of proposed crimes and punishments Jefferson divided offenses into penalties of life, limb, and labor. Sodomy, for Jefferson, would not be considered a capital crime. Instead, he associated it with rape and polygamy, and prescribed for the offender (in either case) to be castrated.[7] He drafted a law reflecting this penalty, and it passed out of committee, but the General Assembly never adopted it. Instead, they opted to keep offenses of this nature as capital.

How can this be? How could the eloquent and perpetual advocate of an inalienable right to pursue happiness be so prejudicial and — in modern terminology — homophobic? How could he be so “Un-American?”

The answer, sure to offend liberals and conservatives alike, is that the founders were less libertarian than we, and Jefferson was certainly much less Randian than objectivists would have us believe.

The individual and society were so complexly intertwined in their minds that to explain it would require more words than the reader is willing to digest here. Put simplistically, the individual upon entering society (whether originally or born into it) sacrificed unlimited freedom for the protection of limited liberty. William Blackstone, commenting on the difference between autonomous liberty and societal liberty put it thusly,

“Let a man therefore be ever so abandoned in his principles, or vicious in his practice, provided he keeps his wickedness to himself, and does not offend against the public peace or against the rules of public decency and decorum, he is out of the reach of human laws. But if he makes his vices public [i.e., involving another citizen], though they be such as seem principally to affect himself, they may then become, by the bad example they set, of pernicious effect to society; and therefore it may then be the business of human laws to correct them.”[8]

By appealing to the founders for an acceptance of homosexuality, Mr. Hurt has overstepped the bounds of proper history. He would have done better to cite more recent lawmakers, specifically Lenin and Trotsky, who were the first modernly to decriminalize homosexuality and gave us the contemporary idea of a “victimless crime.”[9] American history, at least before the Russian Revolution is no friend to the LGBT movement, and hijacking the founders to persuade a modern audience otherwise is, at best, deliberately ignorant.