Strengthening Constitutional Self-Government

No Left Turns

Gay Marriage, a Question

I have been listening to two lawyers debate gay marriage, particularly the litigation over Prop 8, on Hugh Hewitt’s radio show. The heart of the the argument for the repeal, and hence for constitutionally requiring gay marriage in California, is that gays are a "suspect class." Like blacks in America, they have been mistreated, and therefore the Court ought to take particular steps to ensure equal rights, even against the will of the majority.

But that raises an interesting question. The argument presumes that homosexual relationships are the same as heterosexual relationships in all respects, except for the object of attraction, just as blacks are the same as whites in all respects except for skin color/ African heritage. But is that true? Are the two groups completely analogous? The whole point of the anti-racial discrimination campaign is that race is a fiction that has no real basis in reality. That’s not the premise of the gay rights community.

If, as gay marriage proponents contend, homosexuality is largely biological, why is it not possible that the kind of relationship homosexuals want is different from that which heterosexuals want? And if that is true, isn’t it possibe that a law designed for the one might not suit the other. As far as I can tell, science has yet to come up with a solid answer to that question of whether the difference between heterosexuality and homosexuality is nothing more than a difference of objects of attraction. Anecdotes cut both ways, and human history has no experience with the experiment of treating both kinds of relationships the same way. It is an interesting experiment that we are starting.

Discussions - 3 Comments

race is defined by origin or skin color. Gender is defined by sex organs. These are passive traits. Gay or straight are words used to describe people who actively engage in sex. How the two categories can be the same I will never know, but hey lets promote gay marriage and adoption. At least then less of the kids in the adoption pool will be sold to big pharma or chemical companies as test subjects. I am too the point that I just don't care about this anymore. If they want it, give it to them and lets move on to a real issue.

"Majority rules" was the founding idea of the country. One we toss it out, as we have essentially done, we are no longer a republic made up of free people.

It seems that there are two huge, or hugh, topics in the post. One is, as John pointed out, whether we have majority rule or minority rule in this country. I think no one has put the matter more succinctly and exactly than Lincoln in his First Inaugural. If fundamental political questions are going to be "irrevocably fixed" by court decisions made "in ordinary litigation between parties in personal actions" (emphasis added) and the people resigned to such rule, then we have exchanged popular government for oligarchy, and public debate for private talk among the legal elite.

Not to downplay the influence of the Supreme Court in Lincoln's day, but it seems that in our time, judicial supremacy is a much greater tendency. It's not that lawyers have become activists (since they are and always have been essentially advocates and partisans). It's that, since at least the 1920s, judges and justices have come to view as an integral part of their office sympathy and favor for "discrete and insular minorities" -- i.e., the few(s) who, in the justices' opinion, would fail to get laws passed (or who would be victimized by the laws that do get passed).

The open secret is that courts' very officers do not consider their power or purpose to be "doing justice equally to rich and poor," but rather to promote the interests of political minorities. That judges do so using pious (but empty) invocations of equal laws like the Constitution only seals their status as super-legislatures (more than even counter-legislatures), since Americans' habitual dual respect for the Constitution and the courts lets errant judges exploit their office to further their power and preferences.

Besides justices and judges, what other minorities does this arrangement advantage? Whichever groups stir the Sociology-shaped sympathy of law school professors and deans, who then indoctrinate students about the legal injury or political impotence that necessarily comes with those groups' minority or marginality in American society. See any Democrat gathering (in person or online) for examples. As these groups cleave –- identity-politics style -- to minority and marginality as a claim to have their way, they only cooperate with the legal class’s intent to grant them instant-plaintiff status.

There are some very sad implications about our current political-institutional mess about rule and rights. One is to teach that there is no common good or justice in American political life, or at least none that Americans can deliberate about and choose. For example, rights are Americans’ very language of the common good; as shown in the peaks of American political history (the American founding and the country’s great political reformations like the enactment of the 14th Amendment and the 1964 Civil Rights Act), rights are how Americans understand themselves in relation to each other. However, under judicial/minority-rule politics, rights have become corrupted into idiosyncratic expressions of will -- with the more idiosyncratic the will, the firmer the right.

Another sad implication is that the very institutions of government, which are supposed to be united under the Constitution for the impartial administration of the common good, appear to be merely instruments of class struggle (legislatures [or at least referenda] belonging to the economic/cultural majority, courts to the economic/cultural minority), with courts usually winning by submission hold.

Yet another unfortunate implication of this intellectual-political confusion is that we increasingly have what Lincoln feared: government by litigation or “personal action,” which accounts for homosexual affirmative-action policy in the last ten years (and which may be responsible for what policy in the next ten?).

As for the other huge issue, I thought about discussing the homosexual marriage controversy in terms of the desire for recognition and its controversy (a la Fukuyama’sThe Last Man and The End of History). But I’ve gone on too long already.

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