Abraham Lincoln said during one of his famous debates with Senator Stephen Douglas in 1858 that there is no 'right to do wrong' in assessing Douglas' new law known as 'popular sovereignty.' The law, passed a few years earlier, established a new right for the local populations in the western lands and newly admitted states to decide whether slavery would exist within their borders (before this issue had been handled by the federal government). The United States Supreme Court confirmed thepermissibility of this new law in its Dred Scott decision (1857), ruling that the Constitution confers the right to own slaves. This new law and Supreme Court ruling thwarted the attempts of those seeking to bring an end to slavery in the United States, and threatened the status of the Free states to the North, of which manyhad banned slavery since the Founding era. Lincoln, in his debates with Douglas, took both the Congress and the Supreme Court to task for creating this new right. Constitutionally, he pointed out the federal government had exercised the authority to exclude slavery from its territories and newly admitted states throughout the entire history of the nation. He added that the federal government was on a firm moral foundation in so doing. The nation's founding document after all, the Declaration of Independence, states most eloquently that all are 'endowed by their Creator with certain inalienable rights.' The government's main purpose is to secure these rights, not establish ones in contraction to them. The Supreme Court of Californiawould have been well served to go backto thisfoundation and understanding of rights before establishing anew onefor same-sex couples to marry.

The United States Supreme Court five years ago laid the groundwork for the California Supreme's Court's decision regarding same-sex with its decision in Lawrence v. Texas (2003). That case established a new, constitutionally protected 'right' to engage in homosexual sex. The Court actually overruled itself to reach this conclusion. Only seventeen years before in Bowers v. Hardwick (1986), the Court found that no such right existed. The Constitution was silent on the matter; therefore the states were free to pass or repeal any laws dealing with the subject matter. Those advocating overturning sodomy laws, felt their clients' fundamental right to liberty was being violated. Justice Byron White, writing for the majority, noted that the Court's authority in addressing the constitutionality of laws is always at its weakest when it tries to find a right where the clear language and meaning of the Constitution does not provide one. Justice White explained that on those rare occasions when the Court has chosen to strike down a state law because it violated the fundamental right to liberty, the Court had to determine that the liberty being infringed upon by a state law was one 'deeply rooted in the Nation's history and tradition' or 'implicit in the ordered concept of liberty.' The Court has most often found violations in this regard when state laws somehow ran contrary to those rights guaranteed in the Bill of Rights (i.e. freedom of speech, assembly, trail by jury, right to counsel, etc.) The Court in Bowers pointed out that sodomy, far from being a right of this nature was a crime in every state up until 1961, and in twenty-four at the time of the opinion. To argue that these laws were based on a moral code that not everyone agree with, didn't hold weight with the Court either. It observed that 'The law'is constantly based on notions of morality, and if laws representing moral choices are to be invalidated, the courts will be very busy indeed.' The best redress for those opposed to these laws, according to the Justices, was the democratic process, as evidenced by half the states having repealed their sodomy laws by the time the case was heard in 1986. (Another twelve would by the time the Lawrence case was heard in 2003.)

Morally, the Court found that states certainly had reasonable grounds to maintain anti-sodomy laws on the books, if they chose to do so. It noted that 'Proscriptions against the conduct have ancient roots.' Chief Justice Warren Burger in a concurring opinion added, 'To hold that the act of homosexual sodomy is somehow a protected right would be to cast aside millennia of moral teaching.' He referenced the Judeo-Christian tradition, which has most strongly influenced notions of morality in the United States. In that tradition, laws against the practice go back at least to the time of Moses, 3500 years ago. God made them male and female for a purpose. (Genesis 1:26-28, Leviticus 18:22; Romans 1:26-27). Burger also cited Blackstone's Commentaries on the Common Law--the most authoritative legal treatise at the Founding and through the age of Lincoln--which identified sodomy as an 'infamous crime against nature.' In other words, Blackstone is saying that sodomy runs contrary to 'the laws of nature,' which God established when he created the earth, as Blackstone expounds upon at the beginning of his Commentaries – 'Of the Nature of Laws in General.' He explains in this section, because man's reason can become clouded about the morality of various behaviors, God has revealed His laws at various points in history, the 'laws of nature's God.' These are recorded in the scripture. These divine laws, 'the laws of nature and the laws of Nature's God,' are the basis, according to the Declaration of Independence, of peoples' most fundamental, inalienable rights.

Despite both the strong Constitutional arguments and moral arguments made in Bowers against creating a new right to engage in sodomy, the Supreme Court in Lawrence v. Texas chose to do just that. It did so by redefining the right at issue. The case was not about the right to engage in homosexual sex, it was the right to make one's own private, sexual choices. Justice Antonin Scalia, in his dissent, pointed out that no such right exists in the language of Constitution and to follow the Court's reasoning to its logical ends, how couldcourts possibly uphold state and federal laws against incest, prostitution, polygamy, child molestation, child pornography? Aren't these also only private sexual choices? Scalia, with great prescience, also predicted that it would be only be a matter of time until courts took the reasoning used in this case to establish a right for same-sex couples to marry. Four months later, the Massachusetts Supreme Court did just that.

The Supreme Court of California has followed Massachusetts' lead and decided (in a 4-3 ruling) to strike down its state marriage law. Chief Justice Ronald George, writing for the majority, did exactly what Justice Scalia predicted he would. He expostulated that the right at issue was not whether same-sex couples should be allowed to marry, but whether people should be able to make their own private choices about who they'd like to marry. George cited Lawrence v. Texas overturning the more narrowly defined right in Bowers to justify this line of reasoning. He continued that 'under the state Constitution [of California], the right to marry and the right to intimate association are virtually synonymous.' That being true, he added that the right to marry is a 'fundamental' and an 'inalienable' right in California. Inherent in that right is the right 'to marry the person of one's choice,' pulling this language from a landmark 1940's case ruling that people of different raceshave the constitutional right tomarry in the state. The conclusion he and three other justices reached is that people of the same sex ought to be able to marry each other too: Let it be so.

What is particularly stunning about this decision is that the Court actually held that there is an inalienable right for same-sex couples to marry. In other words, it's in the very nature of things: a law of nature. Inalienable rights, as explained above (and stated in the Declaration of Independence) come from God; otherwise, if God and His eternal laws are not the source of these rights, what's to keep the same government that grants rights today from taking them away tomorrow? There is no moral foundation to the law. It's only the laws of man at stake, and whoever holds the powersusurps the moral authority to decide what is right. Lincolnwould have hadno grounds to argue that slavery is wrong.

The California Supreme Court's ruling is wrong constitutionally and morally for the same reasons that the 'right' created by Lawrence v. Texas is wrong. The Court overstepped its boundary in creating a new right for same-sex couples to marry. It tossed aside millennia of moral teaching, and created a right contrary to the 'laws of nature and nature's God.' The purpose of marriage was never more eloquently stated than in the book of Genesis, which records 'for this reason a man shall leave his father and his mother and shall cleave unto his wife, and they shall become one flesh.'

The people of California will likely get the chance to right this wrong in the fall, as a petition, signed by over 1 million voters, has been gathered to put a proposed constitutional amendment on the ballot defining marriage as between a man an a woman. (A law defining marriage in this way passed in 2000 by a substantial majority.) If the amendment passes, California will join 27 other states, which have taken the issue out of the hands of judges. In the meantime, before any other courts seek to redefine marriage, they would do well to study anew the true source of rights and stay out of the business of crafting their own.

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Randall DeSoto is the author of the new book We Hold These Truths about how leaders have appealed the beliefs in inalienable rights and God's Providence throughout United States' history.