Strengthening Constitutional Self-Government

No Left Turns

The Right to Wife

Having begun to read the decision of the California State Supreme Court denying the right of the people of California to define marriage as it has traditionally been defined, and holding that homosexuals have the "right to marry," I am finding a few interesting things.

The first is the question of what to call the ruling. Most commentaries I have seen, describe it as “guaranteeing the right of homosexuals to marry,” or something like that. But why is that more correct than to cast it as a denial of the right of the people to make certain kinds of laws? Similarly, one news radio station said that those who disagree with the decision want to (I paraphrase from memory), "put a law in the constitution that denies gays the right to marry." Could they not have said that they supporters of the amendment "want to overturn the ruiling, by puttin language in the constitution saying that the Court had misinterpreted the relevant part of the state constitution"?

Moreover, some of the exact wording of the ruling raises further questions. Consider the following:

The constitutionally based right to marry properly must be understood to encompass the core set of basic substantive legal rights and attributes traditionally associated with marriage that are so integral to an individual’s liberty and personal autonomy that they may not be eliminated or abrogated by the Legislature or by the electorate through the statutory initiative process. These core substantive rights include, most fundamentally, the opportunity of an individual to establish — with the person with whom the individual has chosen to share his or her life — an officially recognized and protected family possessing mutual rights and responsibilities and entitled to the same respect and dignity accorded a union traditionally designated as marriage.

That language is suggestive. Taken literally, it means that the people of California may not do away with marriage altogether. After all, what does a “right to marry” imply, if not that there must be marriage. I suspect that the Court would, in fact, allow the people of California to do away with marriage altogether if they choose. If that is the case, however, in what sense is marriage a right? Why did not Court not say what it meant?

If, on the other hand, we believe that the Court said exactly what it meant, it raises interesting questions. If there is a right to marry, it means that there are limits to what “marriage” might be. After all, it would be absurd to say that the government must do something, and then declare that the definition of that “right” means whatever people wanted it to mean. Using the sound “horse” to describe a pig does not change the reality of the thing. So too must it be with rights if they are not to become arbitrary.

But how does the Court define marriage? And why does it do so? The Court’s definition (or at least the opinion of the majority) seems to be “most fundamentally, the opportunity of an individual to establish — with the person with whom the individual has chosen to share his or her life — an officially recognized and protected family.” What is the basis for that definition? Why does the Court hold that there must be official recognition and protection of families at all? Can one answer such questions without believing that certain institutions are natural among men?

In the eighteenth century, many Enlightened thinkers, men like Franklin, Jefferson, Voltaire, and others, believed that it was wise to accept whatever all religions accepted as true, or at least necessary in human life, and to doubt the rest. If one applies a similar principle to marriage, one would find that it has been, always and everywhere, an institution or perhaps status, that varies a great deal, but always has featured both men and women. A more classic, teleological understanding of nature would yield a similar conclusion, though by a somewhat different path.

A supporter of the Court’s position might reply that if people are inclined to members of their own sex, it is unfair to exclude them from marriages with people they want to be with. To make that argument, however, is to make an argument based upon a different understanding of nature–it is nature reduced to biological urges. Upon that basis, however, there cannot be a right to marry. There can only be a right to marry if an institution like marriage is, in fact, natural among men. But can gay marriage be natural in that sense of the term?

Discussions - 18 Comments

Don't get lost in the weeds here. This was all a question of power, who has it, who doesn't. The legal Left thinks it has the power to dictate such decisions over an electorate they know full well is fully hostile to their views. Often high courts will keep one eye on the polling data. But they didn't even bother with that this go 'round.

They're ramming this hateful policy down America's throat.

That's what's going on here. There wasn't any need for an involved take on the ruling. In fact, that's playing on their turf. They desire to entice you out into the weeds with them.

Simply say the thing is ridiculous, nonsensical, contrary to history, contrary to all human experience, wholly outside of the long and glorious tradition of Western Civilization, and so have done. And does it even need to be mentioned that the whole idea is contrary to nature, the laws of nature and nature's God.

It's foreign to Western law, and it's particularly outside of Anglo-American law. Which means there's nothing, nothing whatsoever "fundamental" about the "right" at bar.

The elimination of marriage has been a goal of radicalism all the way back to Rousseau and the French Revolution. This is just that long stuggle playing itself out.

The left has abandoned the language of equality and now uses the lanugage of liberty to advance the same goals. "Liberty" has the power to render the modern right inert, where "equality" moves them to action.

Of course liberty and equality were both weapons in radicalism's arsenal.

Liberty defined without any relationship to community or order results in decadence. And decadence does not long endure, at least not without significant internal disruption. So history and experience doth attest.

Steve Hayward notes in his Age of Reagan that Liberalism lacks an internal check, a limiting principle. That's what we see in this ruling, and many another by the way, it's not just this issue where Liberalism has run amok.

Where have we seen such tactics before ...

Oh yeah ... its called abortion!

Another thing ...

What's stopping marriage between immediate family members or even between man and beast?

Dale, exactly. There isn't any limiting principle accept what they find presently acceptable or unacceptable. Nothing limits them. They look only to their own narrow class, their own slender milieu.

They are "like unto gods." They have grasped the authority of nature's god. They each fashion themselves a modern Prometheus, who steals fire from the gods to better the lot of man. They see themselves as extending a boon to all of humanity, wresting a precious freedom away from those burdened by the chains of prejudice, bigotry, ignorance and unreason.

The "shade" is right, but only by taking the decision seriously, so as to arrive at its premises, as Richard's interesting post does, can its nonsense be exposed. And judicial nonsense, unlike other sorts, becomes authoritative. Future liberal judge-rulers may feel obliged to respect and thus follow the implications of this decision. And future liberal citizens may do so likewise. In an issue of the Atlantic a year ago a prominent popular music scholar, (Grulanick? I forget the name) answer the issues' theme question of "What is the American Idea" by quoting one of the key autonomy passages from A. Kennedy's decision in Lawrence v. Texas. You're going to see more and more of that. Many future Americans really will be taught the true meaning of the Declaration from the nonsense of Lawrence.

So what are the implications of this decision, if taken seriously? Well, Richard has focused on what must be one of the most important paragraphs. And he rightly raises the several paradoxes of how marriage is to be defined that that paragraph yields. But Richard, I don't think you see the most important thing in this paragraph, that the right to marriage "encompasses" other more fundamental rights, "a core set" of rights only "TRADITIONALLY associated with marriage." Here's where the action is. These core ingredients, these radical elements of the marriage right, "are so integral to the individual's liberty and personal autonomy" that no democratic majority may touch them. See, now that we're beyond all the traditional hooey about marriage, or at least know that we are obliged by Public Reason to bracket it out of all political discussions, we understand that we cannot base it on religious authority nor on any appeal to gendered and procreative human nature. Rather, we must go to the deeper human nature, which is PERSONAL AUTONOMY, namely, what has become the contemporary understanding of liberty. That is, traditional marriage points not to itself, which is a mere cultural composite, but to the elements of autonomous freedom that are left once we learn to remove the merely cultural (and thus arbitrary) elements.

Now in our regime's founding documents (I am not kidding, folks) of Lawrence and Casey and Roe and Griswold the rights to privacy and that of personal autonomy(which develops out of privacy) are confined to reproductive, sexual, and dignity-defining decisions. But what our analysis of the ingredients of marriage now reveals, thanks to these California geniuses, is that another right implied by those, and lurking within marriage: the "opportunity of an individual to establish — with the person with whom the individual has chosen to share his or her life — an officially recognized and protected family." Of course, a consistent analysis along these lines would see that there no reason that for that insistence on ONE person "with whom the individual has chosen" to share (not for "life," but for so long as they shall choose) the status of "an officially recognized and protected family." Radically analyzed, that is, with the necessary exclusion of culture(i.e., religion) and merely physical nature by the prerogatives of the core nature that is autonomy, the right to marriage yields a right to the status of marriage for any conceivable and consensual combintation of individuals. Put differently, the right to liberty implied by the right to marriage yields the right to form any form of family in a consensual manner, and then to have its collective rights and obligations guaranteed by law.

"They have grasped the authority of nature's god."

Where is this "nature's god you speak of? Where is your evidence?

I claim your god is a man made bullshit story which has resulted in centuries of death, destruction and misery. Prove me wrong.

Enough of the centuries-old superstitions, myths and artificial guilt!

Christian fundamentalism and Muslin fundamentalism -two sides of the same poisoned coin.

In case y'all didn't get enough of my thinking on this, here's more. To review, according the authoritative thought of our judge-rulers, but consistently understood, we get three basic conclusions. 1) Man, properly analyzed = the being with the autonomous nature. 2) Gender/reproduction/heterosexual orientation, properly analyzed = incidental qualities of man. 3) Marriage, properly analyzed = an aspect of automony. Namely, the aspect of autonomy that gives each of us the right to form, with any consenting others, any of the legally respected and benefits-obtaining associations (incidentally) known as a "families."

But there is an obvious practical question we may pose to this line of thought: why should society accept these associations as legally authoritative? Are these not mere contracts? Why not make them so? Why ask society, which by this line of thinking is merely a collection of autonomous beings collected for the sake of better protecting their autonomy, to grant disproportionate advantages and enforcement resources to these certain contractual forms, ones which rather oddly feature a combination of extra benefits and onerous penalties for certain sorts of withdrawal? The answer traditionally has been: "for the sake of raising children well." Today, that answer is still assumed, with the caveat that it not be said too loudly, lest it lend aid to those who would oppose the other answer we give today: "for the sake of respecting gays." Marriage in our day is assumed to be what it is, and is assumed able to run of its own accord, but its primary symbolic importance at this moment in history is being the best form by which our society may give a final stamp of unreserved approval to the gay lifestyle/orientation. Anything less than this sort of approval is anti-democratic, and thus, anti-autonomy. Thus, by symbolically stripping this form of its unnecessary cultural elements, we may publically honor our gay citizens, and thus "complete" our democracy. But this cannot be done unless the arbitrary favor/protection given to the marriage association is maintained. So for now, it is maintained, and autonomy is interpreted to include this sort of special association-forming right. Later on, of course, the unmarried autonomous beings may well ask the married autonomous beings, "Why should we consent to helping you (at our expense) maintain this unusual form of contract?" And unless the "for the sake of raising children well" argument is convincingly maintained as the main and paramount reason for marriage, the unmarried autonomous beings will have their way. Marriage will then become one contract among many you may draw up, and one which no other association (think: corporations) or government can be specially bound to grant benefits to.

I.e., the core issue here points to the paradox of contemporary autonomy: we demand the freedom to be able to do as we want, but we want to do things that cooperate with, involve, and even bring into being, other autonomous beings, and these associational things we want to do often run up against strict guarantees of equal autonomy for all. Contemporary liberalism, in this case imperfectly represented by the California judge-rulers, wants to derive pure associative autonomy from marriage traditionally understood. But it cannot forever avoid the essential tension b/t autonomy and association. And it cannot fully admit the things that resolve that tension with respect to traditional marriage, i.e., the paramount need to raise children well, and the possibility of divine purpose that is tied up with the very history of the institution. Of course, while liberalism also wants to interpret religion as, properly analyzed, yet another affirmation of autonomy, it will never be able to avoid the fact of children coming into the world, and having a need to be raised well, a need that is also society's. Society, even society officially understood as a collection of autonomous beings, is thus going to be perpetually tempted to give this one sort of contract a privileged status. Unless a way can be found around the need in question, that is, unless a more scientific and uniform way of raising children can be devised, humans will remain stuck with marriage, an institution that in fact repudiates the contemporary notion of autonomy, and which will thus also forever implicitly repudiate the equal affirmation of the gay lifestyle/orientation.

We'll be debating this for the next two-thousand years.

Tom Pain, prove to me that my God is not and I'll give him up. Your claim is not enough.

Till then: yes, Carl Scott, and you other guys, too.

I claim your god is a man made bullshit story which has resulted in centuries of death, destruction and misery.

Why is it that whatever their age, lefties always sound like annoying teenagers who have just discovered a Big New Idea?

"Even if one were to rise from the dead, ------------------------ they would not believe him." Thus answered Abraham when the rich man implored him to send someone from the dead to appear to his brothers, so that they might avoid his folly, and avoid eternal damnation.

Tom makes demands. Fallen Tom, member of a race of men that is fallen, possessed of Original Sin, demands evidence that is palpable and immediate.

To answer his questions would be to unfold for him how God has interacted with his creation. But that's a "story," and we know that Tom would damn any such story as "a bullshit story." And what's more damns the results of the "story" because it supposedly caused "centuries of death, destruction and misery."

This is all the "opiate of the masses" stuff.

Death entered into the human "story" long before the "story" of God. Sin has shrouded the mind of man, but it has not wholly effaced within man the longing for the transcendent, nor has it wholly effaced the mindfulness within man of a creator. Deep within man exists the God that Tom cries out in desperation to know. Note the irony, the answer exists within Tom, but Tom in his folly, searches without.

Examine the Obama phenomenon. What is that but the evidence of the longing in the Left for a messiah figure, who will provide them salvation from the economic, cultural and political "oppression" they presently "endure." As much as the Left ridicules fundamentalists, they crave "salvation" from their own messiah figure just as much as any fundamentalist, even as much as the President of Iran, constantly prattling about his mahdi. The longing is the same, it's just the details that are a little blurred and fuzzy.

"[A] bullshit story." Uhm. Well in that God's interaction with the Jewish people occurred WITHIN history, not outside of it, it would be a story then, wouldn't it. It would be a tale that would be recorded, in solemn documents, long kept and long preserved. The transmission of this knowledge from generation to generation would be an important feature of the "story," and that it stretches back to antiquity would be proof of the sincerity of the belief. Archeology has confirmed many details within the Bible, which Tom blasts as "a bullshit story." The walls of ancient Jericho for instance were found, and found to have undergone rupture and collapse. Kind of like described in that "bullshit story" that Tom mocks. As for Jesus, there's more known about him from antiquity than any other religious leader. The Romans noted him, noted the birth of his followers, the Church, the growth thereof, their efforts to stymie that growth, to crush in its infancy. But all their efforts failed. But that too is all "a bullshit story." Christians martyred for their belief by the thousands, yet courageously maintaining their belief in the face of a lost world, nothing but "a bullshit story" for Tom. How sad. What a poor, miserable world that Tom must exist in? How barren? How stark the ending must appear? Tom will cross the river of death and be no more, his stridency gone, his voice no more. What a horrible vision within his soul, within his mind. No wonder he's ill-tempered.

For God to be known, to make himself known, without ending history, he has to reveal himself WITHIN history. Thus immediately opening himself up to the bitter barb that it was all "a bullshit story." Say way back in 1407, the entire Trinity presented themselves to every single person on earth, for a whole day. And everybody recorded as much. Say we even had eyewitness reports, on old original documents. It wouldn't satisfy Tom, for he would still be able to decry it all as "a bullshit story."

Tom thinks that man has the right to demand proof from God. He's reversed the order of things. But God has already provided that proof, long ago, "in the fullness of time." Phillip the Apostle asked the same question of Tom. He said "show us the Father." And what was Christ's response? "He who has seen me HAS SEEN the Father!"

People who deny God are most often people with a strong need for God not to exist. Lest his existence intrude on some aspect of their existence.

Instead of attributing all of the "death, destruction and misery" to God, and those misguided men who follow God, why not ask yourself what kind of charnel house the Earth would be without the internal check provided by Natural Law. And ask yourself too what kind of litany of horrors the human story would have been over the course of those centuries, if the Church hadn't been there to build schools, to found universities, to establish charities, to care for the poor, to tend the sick, to strive for better treatment of prisoners. What kind of art would the West enjoy without the Church? What kind of impoverished world would you dwell in without man's attempt to create something in praise of his creator?

You poor wretch.

Here I am, in utter tranquility and joy, enjoying a bliss that "eye hath not seen, ear hath not heard, nor has it entered into the mind of man" to fathom. And there are you, bitter, morose, attributing the miseries and the murders of man to God, who has offered man life, not that he might murder, but that he might have it "more abundantly."

Not just has God provided you life, but he has offered to save you from your follies, to lift you up from the burden of your misplaced pride, and all you can do is scoff that it's all "a bullshit story."

That "bullshit story" is man's history since the Fall, "O Felix Culpa, ---------------------- which provided us SO great a redeemer."

"Persist not in your unbelief, ------------------- but see, ------------------------ AND BELIEVE!

I claim your god is a man made bullshit story which has resulted in centuries of death, destruction and misery. Prove me wrong.

One can argue until then end of time whether God exists. However, there is one thing that is true. We will all die - the average human life is anywhere from a short 75 to 85 years. At that time each one of us will find out whether Darwin is right or wrong. Bsed on the fact that most of Darwin is unproven junk science, I would tend to believe the "bullshit story." Furthermore God has not caused death, destruction and misery. Man has been given free will and there are a great majority of men who have chosen the path of destruction, misery and death. Blaming man's freedom to choose (take abortion for instance - freedom to choose to end the innocent life of a unborn human being - has nothing to do with God whatsoever) on God is a cop out.

As far as the California Supreme Court of Clowns decision on same-sex marriage is concerned, I, as a native Californian, am sick and tired of the Courts in California overruling the people's vote. I can find nowhere in the U.S. Constitution or the California State Constitution where the courts have the right to override the people's choice - I think I read somewhere in the Declaration of Independence that this is a government of the people, by the people and for the people. I am sure that the Founding Fathers, especially Jefferson, would declare that the time has come for another Revolution - Thank God that Madison has enough sense to write the Second Amendment.

Cowgirl, what they did was declare the issue at bar a "fundamental" right, thus removing the issue beyond the legislature, and beyond the ability of the people to speak on it.

Instead of first addressing whether the issue at bar raised a fundamental right AS UNDERSTOOD through the prism of American jurisprudence, they assumed a fact not in evidence, that it did, and then went on to grant the right to marriage to couples who never before enjoyed such privileges.

The entire ruling assumed something not in evidence, and assumed something nowhere in American case law, that is that same-sex "couples" stood on the same legal footing as normal, healthy couples. Once they did that, their ruling was effectively a foregone conclusion.

Law follows culture. The wider American culture cannot remove the stigma from homosexuality, yet expect a distinction to remain in their law. Nor can that wider culture validate homosexuality, without expecting law to reflect that validation.

When America allowed homosexuals to adopt, extending them marriage rights became merely a matter of time. When America allowed networks to mainstream homosexuality, the courts immediately took notice. If anything, I'm surprised that it's took them so long to ram this through. They've been intending to do this for two decades easy.

When the GOP in 2000 and '04 refused to make an issue of homosexual status within the culture, not just the law, the courts immediately understood that the Republicans haven't any real intention of challenging them on this issue. And when courts feel they've free rein, they use it.

That's why I said it was a question of power. It was never a matter of the particulars within the ruling.

Conservatives and Originalists need to elevate the issue, and make it one that ordinary Americans understand.

Learned Hand...while I have no doubt that for many activists, pushing for the gay right to adopt is a preliminary step to pushing for marriage (which itself is not an institution that majorities of gays [utterly overwhelming in the case of the guys] care about enough to enter even when it is legal), I don't exactly see the logic behind this "once you grant adoption, you grant marriage" argument. And even if I grant the logic, the great thing about making law the old-fashioned legislative way, i.e., is that you don't necessarily have to be logical. Legislatively, it would be perfectly logical to say yes to gay marriage and no to polygamy, whereas jurisprudentially, there are serious problems, even though our judge-rulers will finesse them for a long time, simply to "prove" their critics wrong.

Some of my thinking here comes out of one of the dissents to the Goodridge case, in which it is wisely noted that the state may choose, for the sake of orphans in need of care, to seek out for them less-than-ideal arrangements, like single parents or gay couples. The state may still take the view that gay couples are not the sort of parenting arrangement it wants its laws to actively promote, even if it accepts it on an emergency basis; that dissent shows that the current social science tends to support the basis of that view, that children raised by gay couples are significantly more likely to have difficulties.

More broadly, to win these fights, conservatives cannot hold that the basic societal choice boils down to pre-Stonewall stigma, or, gay-marriage-sealed approval. If that's the choice, our society will choose the latter. But it's a false choice. We can agree that homosexuals ought to be protected from discrimination, insofar as it is practicable for the law to do so, and we can agree that for most gays the orientation is largely innate, without saying, "well, we simply approve of, or we simply MUST approve of, this orientation." Again, despite real couples facing real disadavantages, that desire to win a final seal of approval is the real reason for the political cause. Heterosexual Americans must take the traditional understanding of marriage up to the sacrifical altar and slay it, in order for homosexual Americans to feel like they are citizens with equal dignity. That's the argument, basically, with the unconvincing add-on that it will cost Americans next to nothing, short-term or long-term, to do so. The conservative argument needs to say to gays, "We think it best for the whole society and nation, if this sacrifice is not undertaken. You are a member of that society. You care about future generations and how they will be raised as much as the rest of us. You and your concerns are being used as a pawn. Being gay and being autonomous are far too closely linked in the deeper theoretical and jursiprudential case that is being made. You have eyes. You can see the myriads of ways in which the sexual revolution and the promotion of the autonomous self has harmed society, and you can see how the childless homosexual has often been made to stand as the paragon of responsibility-free sexuality. You can see how the public final approval of homosexuality being demanded is ALSO about insisting upon a final approval for autonomous sexuality. Or at least, that as currently being fought for, there is no way to disentangle the two. Your concerns have been hijacked into a fight for equal dignity for any consensual behavior under the sun. That is not what you and your desire for certain legal protections and benefits to be at least available to you are all about. Indeed, your sexual orientation is but one part of whoever it is you are."

"Morever, the sacrifice-of-the-traditional-understanding-of-marriage strategy isn't even being followed correctly. A genuine final approval would have to come from the PUBLIC, not forced upon them by judge-rulers. But the judge-rulers and their academic friends care less about you than they do Holy Autonomy and Sacred Equal Dignity. And the society they will unwittingly create, if they get their way on this issue and others, will actually be one in which gays wind up at far greater risk of hate-crimes than at present. For the other paragon of autonmous sexuality is the single-child fathering gangsta/pub-man super-hetero. If you weaken religion and cripple the ability of the state to pass morals legislation, that is, if you continually paint social conservatives as THE ENEMY, you are going to see a whole lot more of him."

"Human psychology tells you that heterosexuals are never going to be fully convinced that homosexuality is some unique flavor of normal. ABC knowledge of Christian history tells you that only so many churches are going to abandon the traditional dissapprovals of homosexuality, and that those denominations seem to be the ones most inclined to decline in numbers. ABC knowledge of American culture tells you that Christianity isn't going away anytime soon. So you have to find a way to live with heterosexual Americans as they are, without getting teachers and judges to hector them into affirming things they really don't believe. Your best weapons against a return to pre-Stonewall oppression of gays are 1) aggresive but SMART activism, 2) integration into society, with an active demonstration of sharing the burdens of society, 3)keeping your demands from posing all-or-nothing choices, 4) being vigilant, alongside with the rest of society, against criminal subculture and (in Europe) Islamism, 5)de-linking your collective interests from the autonomy-agenda."

The "logic" wasn't a legal line, it was a cultural dynamic. Griswold inevitably led to Roe. And Casey was so broadreaching that it inevitably led to Lawrence. Adoption was a cultural breakthrough that led to a cascade effect through the culture. And as I said, it simply established a distant date certain for the extension of marital privileges to them.

Conservatives and originalists can fight the good fight, do all they can to stall it out, but absent a serious cultural shift, ------------------- this train is heading down the tracks. The distinction you suggest we can cling to, between civil unions and marriages DEPENDS on the residual stigma that still vaguely obtains. As the stigma fades, the whole reason behind the distinction will fade as well. Until such time as it too is seen as an anachronism, an artifact from yesterday.

But as bad as this train moving along is, there's one worse coming. For in the wake of this legal issue another train is looming down the line, ------------------ and the name on that train is CLONING.

It just gets worse and worse. With no end in sight.

If you're looking to understand a legal issue, and the lay of the land on a legal issue, you have to be mindful that some legal issues cannot be understood solely through an examination of the rulings and the dissents on the matter. Some legal issues can only be understood by looking at the wider culture. Roe was such an issue.

That's why the first thing I did on this thread was caution against getting lost "in the weeds." There's no legal complexity present. This isn't Securities Regulations. The Court chose a level of abstraction to ensure the extension of these "rights." Furthermore, they chose a hermeneutic that guaranteed the result. That's standard operating procedure for Courts in the thrall of Liberals. The legal "reasoning" involved in such cases is but a veil for the cold-eyed application of Liberal political power.

They've made a mockery of a profession once honoured and esteemed throughout the land. And they're not done yet.

Good comments, Carl; after you finish your Delsol piece for the PPS issue (due the end of August), write them up.

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