Berwyn, PA. While the American President is appearing on late-night television to tell the world — and the Russians — that a permissive attitude toward homosexual behavior is a matter of “basic morality,” the courageous Ryan T. Anderson takes a harder line in a new article at NRO. We often hear allusions to Orwell among defenders of real marriage, and justly so: the campaign to redefine marriage is fundamentally about dissolving the present connection between words and reality, wherein words are formed in response to the realities we know. In its place, the advocates of homosexual behavior, who wish to win for its awkward kisses the state seal of approval, are testing the limits of the old Stalinist project of using words to reshape — to redefine — reality. But the goal has never been simply to admit homosexual couplings into the circle of marriage, but to redefine what constitutes marriage for everyone. Anderson begins,
Merriam-Webster is going to have to update the next edition of its dictionary, at least if marriage redefiners have their way. Do you know what the words “monogamish,” “throuple,” and “wedlease” mean? If not, you soon will. After all, the power to redefine words is the power to redefine reality.
Let’s start with “monogamish,” a play on “monogamous.” A 2011 New York Times profile of gay activist Dan Savage, headlined “Married, with Infidelities,” introduced Americans to “monogamish” relationships — in which partners would allow sexual infidelity provided there were honest admissions of it.
The “monogamish” perspective is one of the purported ways in which redefining marriage to include same-sex relationships would make marriage better. The article explained: “Savage says a more flexible attitude within marriage may be just what the straight community needs.” After all, the story added, sexual exclusivity “gives people unrealistic expectations of themselves and their partners.”
These linguistic absurdities serve as further evidence for the case that the campaign for homosexual marriage was never primarily a soft and sentimental extension of legitimacy to the amours of homosexual persons. Rather, homosexual marriage is a late symptom in the larger and older disease that has undermined the integrity of marriage in the West. For more than a century, the Catholic Church and other persons of good will have drawn attention to and sought to counter the assault on the integrity of the family: they have sought to protect the authority and economic integrity of the family unit, the role of parents as primary educators of their children, the sanctity of the marriage bond against adultery and divorce, and the duties of fathers and mothers to their children. In brief, they have sought to protect the family as the constitutive unit of society and as a domestic Church. Against this, the modern state, from Soviet Russia to present-day America, has attacked the family with such gadgets as postcard divorce, the disjoining of sex from procreation, and the situation at the core of a woman’s life the “right” to sterilize herself and to kill her own child.
Many people want the state to do this, of course. If we cannot have self-government, if we are too brow beaten to think that the intellectual life has an end beyond advanced technology, or that the spiritual life might have an end beyond therapy or self-help, if we have been rendered hapless slaves of an economy that is only uniquely “global” to the extent that the boss is farther away than ever and cares about you even less than before, then, well, we at least need sexual pleasure to be our locus of freedom. At least the average slave will always have that to give his life a sense of agency and purpose. As Slavov Zizek remarked about the Clinton era, the state is only too happy to indulge us in this infantile libidinousness.
And, well, the modern state is doing okay. Having dissolved so much, all its advocates seem now to require is to render the word marriage not a reference to a natural formation within human life but as a word that can mean anything the voluntaristic fiat of the modern state proclaims. No wonder that critics of all this, when they do not cite Orwell, wind up citing Lewis Carroll.
We critics of what the age is doing to itself have, of course, cause to be patient. Alice enjoyed her visit to Wonderland. At first, it was just “curiouser and curiouser.” Only after every word was turned on its head (Humpty Dumpty), after every natural habit and practice had been rendered absurd, frustrated in its purpose (caucus races), and after a world freed of cause-and-effect was shown to be ruled by an irrational and murderous queen, did Alice finally desire to go home. We have, finally, to work to ensure there is something left of the real world to come back to. Those with homosexual desires will need to seek sanctuary there every bit as much as the victims of divorce and all the rest of us. Here is hoping that Anderson’s latest essay will preserve what it can and, perhaps, make a few more persons turn back toward reality.
I don’t follow all of this. I think we can have a culture that promotes the sanctity of marriage, without the police powers of the state forcing a woman (or a man) to remain in an abusive marriage, and I think Roe v. Wade properly restrains the police powers of the state without in any way promoting that abortion is a good or right choice, or preventing those who have pro-life convictions from reaching out and seeking to persuade women to choose life.
But the original weakness of the Goodridge decision by the Massachusetts Supreme Court was indeed that they failed to define their terms before ruling that the undefined abstraction referenced as marriage was something homosexuals had been denied and must be granted. For that matter, the court didn’t even try to define what a homosexual is.
The first definition of “marriage” that comes to mind is the union of a man and a woman, whether or not the words “holy matrimony” follows. In secular constitutional terms, it might be stated “a civil process to license, regulate, and tax the biological and social relationship by which a man and a woman enter into a mutual commitment, sexually and as a family unit, with join responsibility for any children that may result.” Judith Kaye, writing in dissent when the New York Court of Appeals turned down a “marriage equality” argument exclaimed that marriage can’t be between a man and a woman “because it just is.” Maybe not. But if so, what IS marriage?
Marriage is a legal construct that regulates a specific human relationship that has an objective biological basis, and that was going on long before there was human law. There is no constitutional basis to argue that if one human relationship is licensed, regulated, and taxed, then any or every other human relationship must also be licensed, regulated, and taxed. The claim that two men, or two women (two different relationships, incidentally) might also be licensed, regulated and taxed can be considered on its own merits through the legislative process. Equal protection of the laws applies to individuals, not to couples or to demographic categories.
The line of “marriage equality” decisions assume, without stating, that marriage is a bundle of desirable benefits that the state should make available to any two individuals that want to have it.
Self-preoccupied idiots like Dan Savage have always been with us. What’s different at present, and hopefully it is just a passing fad, is that they are given space in prominent publications to spout speculative nonsense. Another example is the pathetic whining narcissist who was given space by TIME magazine to bemoan that he is not really equal so long as any church can decline to host his “wedding.” (The man obviously has not studied First Amendment jurisprudence, particularly the long-established line of cases on Church Autonomy in Matters of Faith and Doctrine. Courts have no jurisdiction to even consider granting him whatever his little heart desires in this matter. Too bad.)
I would adore Front Porch Republic and sing its praises to the heavens were it not for its stance on this issue. The most respectable case for your stance I have heard is that a marriage is an institution created for the upbringing of children, and since a union of two men or two women cannot create children, it thus does not qualify. Would not the same meter rule out marriages including individuals who are sterile or impotent? Besides, why limit marriage to mere procreation? I see nothing contentious with the marriage-equality argument that gay people ought to be able to formalize — legalize — their dedication to one another in the same way as heterosexuals. It is not as if by barring them from marriage that you will stop those interested in their same sex from being interested in one another, or from pursuing relationships.
I fear that the Porch’s stance on this issue stems less from some notion of marriage, and more from an all-too-common reaction against anything perceived as different. Homosexual behavior is ubiquitous in the natural world, and humans are members of that world . Hostility toward it is not intellectually respectable: it is nothing more than base aversion to anything different. It carries the reek of xenophobia, not the fragrance of consideration.
Marriage and the family are indeed imperiled, but their foes are the television, overwork, the destruction of society by the modern machine — not the wish of homosexual persons to dedicate themselves to one another.
Siarlys, the “coercive powers of the state” are exactly what is at issue, but in a way the opposite of what you cite. If two homosexuals decide to proclaim that they are “married,” I know of no law that prevents them from doing so. But that is not what they want; they want to call on the coercive powers of the state to force, for example, insurance companies to give them spousal coverage, to call on the state to give them Social Security benefits, etc. By all means, get the state out of marriage. Then you’ll really see the Homosexual movement howl.
Better discussion of this seemingly imperishable subject than virtually all the others I’ve read and sometimes, against my best judgment, joined. Mr. Jenkins, I’m in as complete agreement with your contribution as with any other I’ve ever read when you say,
“I think we can have a culture that promotes the sanctity of marriage, without the police powers of the state forcing a woman (or a man) to remain in an abusive marriage, and I think Roe v. Wade properly restrains the police powers of the state without in any way promoting that abortion is a good or right choice, or preventing those who have pro-life convictions from reaching out and seeking to persuade women to choose life ”
as well as
“There is no constitutional basis to argue that if one human relationship is licensed, regulated, and taxed, then any or every other human relationship must also be licensed, regulated, and taxed. ”
And I agree with the reliably perspicacious Mr. Medaille when he proposes getting the state out of marriage and speculates that “Then you’ll really see the Homosexual movement howl. ” What he does not say is that you’ll also hear non-homosexual married people increase the volume of that howl a hundredfold.
Finally, Stephen speaks my mind (as we Quakers say) when he says, “I see nothing contentious with the marriage-equality argument that gay people ought to be able to formalize — legalize — their dedication to one another in the same way as heterosexuals. ” I wish only to append to his words the qualification, “as long as the context of the argument is not a confessional state.” A Roman Catholic or Muslim polity would be justified in not countenancing–indeed, in punishing–those who would so argue.
“I fear that the Porch’s stance on this issue stems less from some notion of marriage, and more from an all-too-common reaction against anything perceived as different.”
That’s right, because if FPR is about anything, it’s about blind adherence to mainstream social opinion, and refusing any independent or different thought!
C’mon man.
“By all means, get the state out of marriage.”
Such would be complete and total final surrender to state supremacy over all. Marriage as the fundamental institution of civilization far predates any current government. Property rights involved within that institution far predate any current government. Government isn’t being benevolent and kind by not taxing spousal inheritance and other marriage rights (I use rights in the true sense of the word, not the idiotic “right to marry” and “right to choose” and “right to health care” formulations)–it’s recognizing that there are rights and privileges that predate and supercede its powers. “Get the state out of marriage” means that Leviathan truly wins, and civil society is utterly obliterated. We may lose, in the short term and even in the long, but must never surrender.
As an exercise in Orwellian double speak this author exceeds. If marriage is religious, then he should be advocating that the govt get out of it, gay or straight. If not, then it is a civil rights injustice, plain and simple. The fact that you refuse to acknowledge homosexuals as full human beings and that you use as the core of your defense a most intellectually broken paradigm isn’t everyone else’s problem.
I for one am pro gay marriage. Hell why shouldn’t they suffer as much as everyone else?
A for big vocabulary. D for rigor.
Brian, I’m not quite sure I follow you. You are saying (if I got this right) that we can’t get the government out of marriage because then Leviathan wins?
I think I see a way to make that argument work. Today, the state absorbs all functions of government, but this is a modern phenomenon. Prior to the modern age, the state was not the only government; There was also the Church. Government was a dyarchy, (the modern state, ironically enough, is a monarchy, with all power gathered in the sovereign state’s benevolent hands.) The Church had responsibility for things like marriage.
The most respectable case for your stance I have heard is that a marriage is an institution created for the upbringing of children, and since a union of two men or two women cannot create children, it thus does not qualify.
Why Stephen, you evidently haven’t read a work I posed in this very space. I have never conditioned marriage on procreation. I have said, if I didn’t specify it here, that the reason sexuality exists at all is that without powerful sexual emotions, nothing more complex than a sponge would go through the inconvenient contortions necessary to reproduce. Thus, on a purely biological basis, without any reference to God, sexuality is by nature and origin heterosexual, and homosexuality is at most an irrelevant statistical outlier, the misfire of an imprecise chemistry. Therefore, I see no particular reason that the state has any constitutional obligation to subject homosexual couples, either gay male or lesbian, to be licensed, regulated and taxed. Nobody has yet proposed ANY definition of marriage that inexorably includes gay couples except by reducing marriage to such a vague nonentity that it has no definition at all.
Now I will be the first to agree that for an individual who finds that their body chemistry is entirely stimulated by the presence of their own sex, not the opposite sex, that is 100% for their own personal experience and life. I’m not opposed on principle to a voting majority deciding, hey, a small minority of our fellow citizens can only find a semblance of family fulfillment in the arms of their own sex, so lets be good fellows and agree they can have marriage licenses too. But its not a constitutional right. They have no entitlement to call upon the coercive powers of the state to MAKE everyone love and adore them.
There are individuals who feel drawn to their own sex who conclude, this is what my hormones urge me to do, but it is contrary to what God has called us to do, so I will resist my hormones, and if I cannot enjoy marriage to the opposite sex, I will remain celibate. That’s not required by law either, but it has a consistent logic to it. It is one choice people can make. They may be right about what God wants of them, or they may be wrong. But they are not certifiably crazy. It is one legitimate response.
Finally, I must note that we do not live in a Roman Catholic or Muslim polity, and I for one will appeal to the Second Amendment before I would submit to the United States of America becoming either one.
Still spot-on with me, Mr. Jenkins, though I might invoke Amendment I before Amendment II.
Mr. Medaille:
Here’s the gist of the basic argument. I’ll defer to your much greater knowledge base to correct anything I may have grossly wrong:
Marriage predates the state. It fell under the purview of the Church, as did basically all social matters. Relatively recently the state is formed and among the powers it claims for itself was the right to taxation, in order to either a) enrich its officials, or b) to provide services for the people and thereby to earn the consent of the governed, depending on how charitable one is willing to be towards the motives of the tax collector. The “benefits” that marriage is “given” in the legal code are not “given” by the benevolence of the state. They are inherent rights of the institution that predate the formation of the state (ok, not 100% of them nowadays perhaps, but the fundamental basics).
Now, when we say “get the state out of marriage” I don’t see how this doesn’t mean, among other things, “inheritance from a spouse is treated exactly the same as inheritance from any random person”, i.e. the state has the power to tax the ever-loving heck out of it. In other words, the taxation power of the state is given complete and total supremacy over the rights inherent in the marriage. Marriage for all intents and purposes is abolished, and without effect. Total victory for Leviathan.
Brian, Your argument, then, basically has to do with the taxation of inheritances, is that it? Without an exemption, the widow’s inheritance would be taxed? Okay.
I think I see your larger point, though I would make the argument in a different way. Again, it depends here on what you mean by “State.” If you mean the modern, secular “nation-state,” then everything precedes the state. If you mean more generally every form of governance, then no; marriage might precede the state but it doesn’t precede the community. Neither in Christian theology nor in any other system that I know of is marriage just a private contract between individuals; it is always communal and valid to the extent it is acknowledged by the community. Man is by nature a political animal, and marriage is a political act. It always has been.
So the question is, “Which political community gets to define marriage?” In my view, the secular state is incompetent to do this, and if marriage is secular, there is nothing to prevent gay marriage, polygamy, polyandry, etc., save and except the will of the sovereign (in a democracy, that would be, in theory, the will of the people, and in practice, the will of the “right” people.)
That, I think, is the reason we are having the discussion we are having.
Mr. Medaille: I believe the spousal inheritance issue was of major importance to the recent Supreme Court decision. It was referred to repeatedly above. That’s why I used it as my example here. Unfortunately, it does lend itself to criticism that I am the one collapsing marriage into a purely economic issue, but in these (philosophically) Marxist times it seems that that’s the only thing anyone can focus on.
~~So the question is, “Which political community gets to define marriage?” In my view, the secular state is incompetent to do this, and if marriage is secular, there is nothing to prevent gay marriage, polygamy, polyandry, etc., save and except the will of the sovereign (in a democracy, that would be, in theory, the will of the people, and in practice, the will of the “right” people.) That, I think, is the reason we are having the discussion we are having.~~
Bingo — that’s the best short summary of the thing I’ve seen. The definition of marriage becomes elastic, and is ultimately based on who’s doing the defining. And if a thing can be defined any way that the political wind happens to blow, then it is, in effect, meaningless (which I think is the long-term goal anyways).
The definition of CIVIL marriage IS elastic. Since homo sapiens living in community pre-dates both the Christian Church and any semblance of Judaism, and pre-dates the State (cf. Keith Otterbein’s How War Began, “States make war, wars do not make states”), marriage could be said to pre-date both church and state. Religious institutions define and regulate marriage to given the blessing of God (or the gods) to a holy union. States define marriage to regulate contractual rights, whether to the body or the property. The two may choose to cooperate in a “one stop shop” to reduce the red tape, e.g., clergy being authorized to sign marriage licenses. But if the sovereign people vote (as they did in New York — assuming the current legislature can get re-elected), to expand the definition of marriage, that is legitimate — civilly.
What is not legitimate is (a) to DEMAND this of the sovereign people as a matter of constitutional right, or, (b) to IMPOSE is upon religious bodies, since congress, state legislatures, and courts are all denied authority to infringe the free exercise of religion. The key line of precedent is “church autonomy in matters of faith and doctrine.” Finally, there is a rational basis to licensing only heterosexual marriages, because sexuality is inherently heterosexual by origin, although not in every individual instance.
Ray, I would always go for the 1st Amendment before the 2nd. But, if we find ourselves living in a Roman Catholic or Muslim polity, the First had already been trampled into the dust, in which case, its time for recourse to the Second.
Siarlys
I think the term you are using is ‘Plastic’, not ‘Elastic’.
Elastic implies that it can change according to conditions but will resume its original shape when pressure ceases. Plastic implies that it is flexible enough to be distorted or changed but does not resume, or in theory have, an original shape.
I can believe that marriage law is Elastic, but the idea that it is just freely shaped according to whatever the requirements of the age are, that is, that it is plastic, is absurd. There is a fundamental shape to it and the further from that shape the law takes it, the greater pressure it puts the institution under.
Mr. Jenkins, I would certainly agree that the definition of marriage is elastic. But “elastic” does not mean “without limits”; like a rubber band, it can stretch, but at some point it breaks. Marriage can be many things but it cannot be anything. To say that marriage (or anything else) is whatever the sovereign says it is, is the very principle of tyranny. And it matters not in the least if the sovereignty lies in the will of a king or the will of the people.
Right you are, Mr. Jenkins, but only if an RC or Muslim polity were established, which isn’t what you posited. I’m still with the rest of what you just wrote. In terms of good sense and fellow-feeling, you’re leading this discussion.
Has anyone considered that gay marriage has been recognized by many religious bodies– the UCC, my own Quaker meeting, some other Friends meetings–for decades? For the purposes of the state–which everyone here seems to regard as the repository and enforcer of all evil–these marriages have until this year not had legal status. But to declare that they were and are invalid religiously seems to grant that the U.S. has been a specific confessional state until this late Supreme Court ruling, and that seems to flout the First Amendment we all so admire. It–such a confessional state–also seems an inaccurate description of at least recent historical reality.
Constitutionally, I agree with John Medaille. You cannot make out an argument that “equal protection of the laws” entitles any asserted combination of people to a marriage license without reducing the word to a definition so broad that it has no meaning at all. In fact, one benefit of allowing “gay marriage” by legislation, but not by judicial fiat, is that it does NOT open the definition up to diffuse infinity.
Why are gay couples allowed to obtain civil marriage licenses in New York? Because the sovereign people decided to so recognize these two particular human relationships. Why not polygamy, polyamory, bestiality, incest…” Because, the sovereign people have no interest in recognizing any of the above. “But I have a right to equal treatment for MY preferred form of gratitification!” Don’t be silly, none of these things are similarly situated. And if Louisiana doesn’t care to pass a law like that in Massachusetts, no reason it has to. All persons have an equal right to enter into whatever is recognized as marriage, and that is all that equal protection of the laws requires.
Further, what the Roman Catholic Church recognizes as a marriage is exactly what the Roman Catholic Church says it is. Because God so ordained it? Perhaps. No reason Rome has to stray from what it believes God so ordained. No reason Ray Olsen’s Quaker meeting can’t reach a different conclusion about what God ordained. No reason the civil government has to follow either.
It is not tyranny to set forth by law that some human relationship shall be officially recognized and licensed. It is tyranny to require that all shall bow down to it and serve it. Thus, while I fully support public accommodation laws, generally, e.g., gay people don’t buy groceries any differently than anyone else, I see very strong constitutional arguments why a photographer should not be required to PARTICIPATE in a “gay wedding,” because that infringes the photographer’s own freedom of expression, so to speak, putting words in their mouth. And as for bed and breakfasts… those are often in someone’s home. The Fair Housing law contains an exemption for anyone owning four or fewer units who lives in one of them — and that’s for racial discrimination.
A few thoughts on the role of the state, and of traditional marriage vs same-sex marriage. I have a somewhat different view than most porchers. I think, for example, that if children should be raised ideally in married households than same-sex marriage recognition should be a prerequisite to same-sex couples being allowed to jointly adopt.
Traditionally, the married family household is a very multi-functional thing. It functions to pass culture on to the next generation, to care for the elderly, and as the basic center of production and consumption in the economy. We have, through social security, largely eliminated the care for the elderly on a household basis (and this, that children no longer care for aging parents, is a very bad thing btw) and through excessive corporate control we have eliminated the household as the center of production, so that leaves, only as a fundamental purpose of marriage, the raising of children. If we are going to set up households as raising children, we should not eliminate the rights and responsibilities of marriage from those. There, I think, I part with most Porchers.
This being said, I am *very* hostile to the idea that we should push same-sex marriage on the world. In much of the world gender relationships are understood to be at the center of social structure generally, and the relationship between parents and children regarding retirement is based on that understanding. In such a culture, a same-sex household is never similarly positioned to an opposite-sex household regarding caring for aging parents. This idea that there is only one proper form of marriage and we know what it is, is deeply imperialist and it relegates diversity to something only skin deep. Diversity is fine until guinea pig meat starts showing up at the supermarket or Jews are allowed to circumcise infants, and of course, until we disagree about anything regarding public policy, property, and centralization of power.
~~Why not polygamy, polyamory, bestiality, incest…” Because, the sovereign people have no interest in recognizing any of the above. “But I have a right to equal treatment for MY preferred form of gratitification!” Don’t be silly, none of these things are similarly situated.~~
Not right now, anyways. But the legal barn door has been left open a crack for such things to be “similarly situated” in the future, and it cannot be closed again without calling the whole enterprise into question, which cannot be permitted. This was what Santorum was getting at; he was not, contrary to popular opinion, espousing a slippery-slope argument. In any case it still amounts to tyranny: “what the sovereign people want is what the sovereign people want.” No different at bottom from absolute monarchy.
“And if Louisiana doesn’t care to pass a law like that in Massachusetts, no reason it has to.”
It may not have to pass that law, but it will at some point have to honor Massachusetts’ determination. If a gay “married” couple moves from Boston to New Orleans, are they still married? Will the federal government allow this level of diversity among the states? My guess is no, and this is precisely what the gay marriage activists want — a federal ruling that gay marriage must be recognized in all 50 states, even in those states that decide to disallow it themselves (if indeed they’re permitted to disallow it. I have my doubts about that.)
Some random thoughts:
~ I wouldn’t worry about the Orwellian implications of “monogamish” or “throuple.” Fad words come and go. What burns me up is the hijacking of “gay” – a solid, useful and really delightful old word, which we no longer can use as a nuanced synonym for “merry.”
~ The institution of marriage is the one area where the separation of church and state breaks down. The remedy would be to make a clear distinction between “civil unions,” “city hall weddings” or whatever you want to call them and “marriages.” The former would invest a couple with particular legal rights and obligations. The latter would provide them with an emotional bond – spiritual, romantic, biblical, whatever. A marriage license – which is a civil document – would make a marriage also a civil union.
Who may enter into a civil union or apply for a marriage license would be a matter for legislators, just as who may enjoy a marriage ceremony would be strictly a matter of religious doctrine. Thus, just as you could have legally united couples who are not married, you could have married couples who are not legally united. For example, fundamentalist Mormons could engage in polygamy without any hassle from the law; however, any marriages after the first marriage would not be recognized legally for the purposes of tax deductions, inheritance, etc. (That is, unless or until polygamy is legalized.)
~ I remember reading a few years ago about a pair of elderly sisters, in England, I believe, who wanted to be joined in a civil union so that they could receive the same care, both from social services and each other (in terms of medical oversight, etc.), as a couple whose bond was a sexual one. They were refused, of course.
There’s certainly something unjust there, something which could be rectified – once the religious and procreative aspects of marriage were separated from the civil aspects.
Some new voices! Now we shall have some fun. Thank you all for keeping the discussion interesting. I think Chris Travers has a well-balanced, workable proposal. Rob G, I recognize what you are saying about what gay marriage activists WANT — and the more extreme of them are a pathetic band of whining narcissists. I’m talking about legal and constitutional ways to give them considerably less than they want, particularly where the rights of others in the body politic are also at issue.
If things are not “similarly situated” then they are not — that doesn’t change over time or with legislation. The argument that the union of a man and a woman is simply not similarly situated to the union of two men, which is not similarly situated to the union of two women either, undermines any claim that “equal protection of the laws” entitles anyone to a marriage license as a matter of right for whatever they care to enter into. It is true that the sovereign people may, by legislation, decide to license the union of a man and his dog, or his horse, or his sheep, but that won’t be because someone “decided” they are “similarly situated” to the union of a man and a woman. It will be because a majority of citizens decided that a man’s physical sexual love for his horse is worthy of honor, notice and approbation. No matter how loud some batch of whining narcissists might demand that, I rather doubt it will become a popular cause.
At least both halves of a gay couple are our fellow citizens and fellow homo sapiens. I suppose the measure in San Francisco to retitle pet owners as “guardians” is a bit ominous, but guardians generally face severe penalties for taking sexual license with their dependents.
Going back to what Medaille said about authority: ANY definition of marriage has to have SOME authority. Indeed any definition at all must have some authority, even if that is no more than a measurement and codification of “common usage.” Our host made an excellent choice of graphic when he reminded us that Humpty-Dumpty was an object of merry scorn announcing “When I use a word, it means exactly what I choose it to mean.”
No definition of marriage attached to humanity merely because we reproduced sexually. If God established it, then it is what God said it is. If a given religious faith established it, then it is what that faith says it is. If the legislature established it, then it is what the legislature says it is. Actually all three may be true, and the definitions overlap, but operate in distinct spheres. The Supreme Court of Massachusetts, in deciding Goodridge, was very careful to state that they ONLY have jurisdiction over civil marriage.
The primary constitutional mechanism for requiring Louisiana to recognize a Massachusetts marriage would be the “full faith and credit” clause. Gay activists will argue that Louisiana must give full faith and credit to any marriage license issued by Massachusetts, and vice versa. But a contrary argument can be found in the early precedents of Massachusetts regarding slavery. A woman born in Massachusetts who married a Louisiana plantation owner came to visit her parents, accompanied by an enslaved maid. When a suit to free her came before the state’s courts, judges ruled that she became free, not because crossing the state line worked a change in her status, but because there simply was no authority under the laws of Massachusetts to restrain her, and keep her in bondage. She was free by law to walk away.
Similarly, I would argue that there simply is no law in Louisiana establishing any such thing as a marriage between two men. If there was, of course a Massachusetts license would be accepted, but there is not. If a Massachusetts insurance company sells a homeowner’s policy covering a house in Louisiana, it is governed by the insurance laws of Louisiana, not of Massachusetts. Moving to Louisiana doesn’t change the gay couple’s status, it simply places them in a legal framework where their license has no meaning that any state law provides for.
The distinctions Zwemmen offers may be in the end the way to go. The government will license what the body politic cares to license, religious bodies will sanctify what religious bodies feel called to sanctify, couples will seek from what is on offer, what they believe they need or are required to obtain (for many, that includes the blessing of a church, on the terms dictated by the church’s doctrine and canon), and God will judge in whatever manner God sees fit, at a time and in a manner of his own choosing, not generally made known by direct communication to legislative houses.
Siarlys, I guess I misunderstood what you meant by “similarly situated.” However, I believe my objection still holds. Bestiality is obviously an outlier, but polyamory and pederasty are not (although I think that normalization of the latter could be accomplished by lowering the age of consent). There is no reason why once you allow two men to marry, you shouldn’t allow three to do the same. And so on.
You write that “moving to Louisiana doesn’t change the gay couple’s status, it simply places them in a legal framework where their license has no meaning that any state law provides for.” This is where I believe the breakdown will occur, in that I foresee the federal government eventually ruling in some manner or another that the state laws cannot operate in this way. Such a legal framework will be deemed discriminatory, and thus unconstitutional.
Rob G, how this all falls out in practice is indeed partly a matter of semantics, and it is a hazard to constitutional liberty when the meaning of the plain language of the constitution depends on semantics rather than rigorous definitions, which I believe was one of Mr. Wilson’s concerns in posting this column. But “the federal government” does not have open-ended authority to “rule” that “state laws cannot operate in this way.” Congress can pressure states to lower their speed limits… but only by withholding highway funds, not by legislating uniform speed limits. Federal marriage laws pertain ONLY to federal benefits, and certain activities on federal land. Issuing marriage licenses, and what these entail, remains very much a matter of state jurisdiction.
There is not even a constitutional provision that over-rules all things that may be deemed discriminatory. Activists for various causes like to paint with such broad brushes, as do journalists, but we must try to reaffirm that words have meaning, not lie down and wait for leviathan to steamroller our prostrate citizenship. In Louisiana, there is no marriage of men to men or women to women, thus, a Massachusetts marriage license has no application in the state. But we can only hold the line there if we insist that marriage be defined BEFORE considering whether anyone has been denied the equal protection of the laws (which is the proper constitutional language, not “discriminatory”).
My argument is, there is a real relationship between men and women, and if you write marriage laws to regulate it, that neither requires nor precludes you from writing laws to regulate any number of other human relationships, either calling one or more of them marriage, or calling them something else. One might write a law referring to the sexual union of two men or two women as a “dualage,” providing that it be licensed and regulated, similarly to, or differently from “marriage.” Why does this not deny homosexuals the equal protection of the laws? Homosexuals are not even a relevant category, nor is it established that any of these laws discriminates. Every man is free to enter into marriage, or dualage, as he wishes, or not, if he prefers. So is every woman. Case dismissed.
Why not three? No reason, and none needed. We simply did not legislate about three. Three what? Three men? Dualage is about an exclusive life-long commitment. Why not polyamory? We have no interest in licensing, regulating or taxing polyamory. Why not? We don’t even have to answer that question. It is entirely discretionary. Not a matter of public interest. “But I have a right to a license for my preferred lifestyle!” No you don’t. Show me that in the constitution. You have an equal right with any other citizen to enter into one of the statuses we have chosen to enshrine in the law. The constitution requires no more. “But that hurts my feelings!” So what? That’s not unconstitutional. People hurt my feelings all the time. I endeavor to hurt their feelings right back, if I think there is any purpose to doing so.
One could lower the age of consent. One could also raise the age of consent. It might be constitutionally difficult to provide that individuals who are full voting citizens cannot “consent” to one specific act. But, so far, we’ve gotten away with lowering the voting age to 18, then raising the drinking age back up to 21. But there is no reason the age of consent MUST be lowered. In fact, the distinction between “consenting adults” and adults acting upon juveniles easily passes constitutional muster. Keep things distinct, and don’t let the whining narcissists blur the meaning of words.
First I want to be very clear. I am approaching this issue *not* as a question of individual rights but as a question of social structures, duties, and bonds. Marriage, if it is to have any place at all, must strengthen important social bonds, and the primary ones are between generations. Thus I flatly reject Ted Olson’s argument before the Supreme Court that “Marriage is an individual right of individuals, not an institution that binds parents to their children.”
However, most states now allow same-sex couples to adopt. This is because, in the judgement of public policy, it is better to move kids out of the foster system and this is generally seen as benefitted by having more eligible adoptive parents. I don’t know to what extent the impact of opening up the adoption system has on getting kids out of foster care, but this is really where I think the question is. Assuming that a stable same-sex parenting home is better than an unstable foster environment, then we don’t have to settle whether there are costs for same-sex couples raising children, just that opening it up on the balance benefits kids. I don’t think that is a high bar to meet but it does need to be studied.
However, if you are going to allow two individuals to jointly adopt a child, it does not serve that child’s needs at all if you then restrict the rights and responsibilities of marriage which help guarantee a stable household for that child and the related stability in social environment that comes with this.
So what I want to be clear about is that we *don’t* have to decide that same-sex couples are similarly situated to opposite-sex couples relative to adoption. That’s a public policy question that needs to consider the realities of adoption and foster care. However *if* we decide that same-sex couples should be allowed to adopt, *then* I think it is very bad policy for the kids involved to deny their household an institutionalized status. At that point we have set things up *so that* the same-sex couples are similarly situated.
I don’t think this requires calling the whole institution into question if circumstances change and we move away from such a model. I think instead it allows us to be more clear about what a married household offers to society, and ties the definition to that, and it allows for a wider discussion of family and households and the nature of society. That’s the real question we are probably really arguing about.
As far as full faith and credit, and cross-state recognition of marriage, the simple fact is that this has never been mandatory. States can and do decline to recognize other states’ marriages on public policy grounds. There are probably some exceptions where such recognition is really required as a consequence of our system of federalism.
Obviously if a Louisiana man sues a massachussets same-sex couple in Louisiana court over an action that took place in Louisiana, the couple can’t hide marital assets by arguing that their marriage isn’t recognized in Louisiana law. No, standard conflict of laws means you look to the state of residence, and address assets that way.
Similarly, I would be surprised if a mere vacation were sufficient to allow the state of residency’s determination to be voided by the visited state. States can’t charge taxes for entering or leaving their states. I don’t see how they can ask that vacationers leave their marriages at the border. Similar concerns I think would mean that polygamous families vacationing in the US from countries where they are legally married would not be treated as single for purposes of US law.
But when people move from one state to another? While I do think that the previous state of residency’s determination still should get some weight, I do think that is perfectly clear that it is not beyond rebuttal.
Suppose Nevada had no provision for issuing marriage licenses, and no law providing any treatment for people who have one different from people who do not. What would it mean for two people to move into the state with a license from Montana saying “We’re married”? As far as the operation of any state law in Nevada, it would mean nothing at all.
If the owner of the Mustang ranch opened a franchise in Salt Lake City, announcing, “my business is a legal brothel,” what force would that statement have in Utah? None. Prostitution is illegal in Utah (as it is in some parts of Nevada).
Same thing if two men move from Massachusetts to Idaho and say “we’re married.” Its not a crime to say so, but there is not one law in Idaho that provides in any way for two men who say they are married.
One quibble: The goal of Stalinists is not to REdefine words but to UNdefine them. REdefining is part of normal life. Bullies and tyrants sometimes REdefine arbitrarily, but it generally doesn’t work. Stalin’s method is to whipsaw your mind back and forth with constant sudden confusions, resulting in a mind with no foundations or confidence.
You can see the process in any TV show, whether it’s called drama or comedy or news. You thought that was a man? Ha ha, it’s a woman. You thought that was a woman? Ha ha, it’s a man. You thought that was a man disguised as a woman, based on the previous two hahas? Ha ha again, it’s actually a real woman. And so on, thrashing the definitions back and forth until the sinews of your mind rip apart. Every attempt to form your own patterns is smashed.
Final result: You’re utterly incapable of reaching your own conclusions, and must accept the conclusions that the TV shoves into your eyes as of THIS millisecond. You think (but you’re not sure) that NEXT millisecond will be different, so you have to keep watching to maintain momentary stability.
Siarlys, I think you are far too sanguine about the federal government’s power to push a progressive agenda. After all, gay is the new black, at least in theory. And did not the pushing of the Civil Rights agenda draw upon a fair amount of Federal power? In fact, this was one of the very arguments against the Civil Rights push used by certain conservatives of the 50s and 60s. Equal rights for blacks was a good idea, but the way it was being accomplished would be detrimental to all of us in the long run, given the increase in government power that it entailed. I don’t see why such a scenario cannot be repeated under the current circumstances. I haven’t read it closely, but it seems to me that Scalia’s dissent implies the possibility of such an occurrence.
If the Supreme Court can decide that states can’t allow discrimination against blacks when it comes to, say, housing, I can’t see anything that would necessarily prevent them from making a similar ruling w/r/t homosexuals and marriage.
Siarley’s, it is more complicated than that. The fact is that with marriage come a large number of rights and responsibilities regarding joint property ownership, childrearing, and the like. Courts can’t reasonably just waive those away. A relocating couple is going to have significant encumbrances due to the marriage and states are going to have to deal with this one way or another.
Whether resolution goes through divorce court, annulment, etc, and how lawsuits against defendants address these are issues which are remarkably complex. The point is that there is a huge gray area between official recognition and no recognition at all and courts have had to navigate this in the past.
When Scalia is good, he is very very good, and when he is bad, he’s totally bonkers. I’ve read his dissents. They are evidence of nothing except the state of his own mind, and probably, show more desire to score debating points than to accurately prognosticate the future.
There was a time when the U.S. Supreme Court could not free a man or woman from slavery, much less decree that they be treated with complete equality. For the most part, the Dred Scot decision was perfectly sound constitutional law, EXCEPT possibly for the sweeping rule that congress had no power to forbid slavery in the territories. That was changed by constitutional amendment, not by justices waking up one day and saying “Let’s stick it to the slave power today, why not?” The amendments were in part secured at the point of a bayonette, but that’s what happens when there is a resort to arms. Nobody incurs hundreds of thousands of casualties so that when its over the losers can have back everything they risked in the first place, and the winners get to welcome them home, all is forgiven. At least the military outcome was processed through constitutional amendment, not martial law.
Actually, it took an act of congress, pursuant to its delegated powers to regulate interstate commerce AND to enforce the 14th Amendment by reasonable legislation, in order to pass a federal fair housing law. The Supreme Court could not, and did not, go so far. All the Supreme Court had done is rule that, while covenants not to sell real property to anyone not of the “white race” were a private matter, enforcing such covenants invoked state action, and states could not do that. Thus, until 1968, a willing seller could violate the convenant, and their neighbors had no recourse to enforce it, but an unwilling seller could not be required to sell to someone proscribed by the convenant.
Are you willing to accept the maudlin mantra that “Gay is the new black”? I’m not. There is not the slightest analogy. I stand on the position that there is NOTHING discriminatory about pre-existing marriage laws. Is a plausible secular constitutional argument not worth speaking up for, rather than wailing and bemoaning the coming catastrophe? The demographics and the battle lines are somewhat different from abortion, but there is a rough commonality that the number of people who REALLY care, adding up both extremes, are less than half the population. The rest of us have a variety of nuanced positions in between.
Chris, in a backhanded way, the things you point out are precisely the reason things will settle out as I have described. If a couple is “married” in Massachusetts and “adopts” children or obtains them by some form of IVF or the direct turkey baster method, then moves to Louisiana, where there are NO laws about such things, they have no rights at law. A civil marriage, emphasis on civil, can exist only by positive law. Louisiana might well recognize that if full custody was granted to x person or persons by another state, then those persons have full rights and responsibilities as parents, regardless of their sexual proclivities, if any.
Another legal analogy from pre-Civil War days is instructive. The Supreme Court of Mississippi ruled in in 1818 that “Slavery is condemned by reason and the laws of nature. It exists and can only exist, through municipal regulations.” This applied, but did not cite as precedent, the earlier decision by Chief Justice Lord Mansfield in 1772. This did not abolish slavery. But it limited the rights of a slave owner to those specifically established by legislation. A slave owner could not appeal to the common law to vindicate any rights whatsoever as to human chattel. In the 20th century, the West Virginia Supreme Court similarly ruled that state law did prescribe separate schools for “white” and “colored” children, but since no law authorized racially segregated libraries, the Charleston library board was without power to exclude colored citizens from the new municipal library.
Thus, if there is no law in Louisiana providing for the marriage of two individuals of the same sex, then there are neither benefits nor liabilities at law in the state of Louisiana that attach to the certificate issued in Massachusetts. Divorce? There are no mutual obligations at law in Louisiana to divorce each other from. Possibly if a partner to a marriage in Massachusetts fled to Louisiana to escape their contractual responsibilities, Louisiana would be obliged, on the issuance of an appropriate writ, to return the fugitive to Massachusetts.
It requires some care to sustain this argument. If you stoop to semantics, the “marriage equality” argument wins. I’ve gone over Loving v. Virginia many times identifying the superfluous semantical parallels beloved of SSM advocates, and outlining the real legal and jurisdictional principles involved. To keep it short here, a valid “Loving analogy” would be advocating the right of homosexuals to marry heterosexuals, which as a matter of fact no state law prohibits.
It would be dangerous to argue this on the basis of ‘imposing alien cultures on local traditions.’ That has nothing to do with the constitutional argument. This is about jurisdiction. The feds took explicit jurisdiction to protect freedmen and others against racial discrimination. Gays can look to the general rights of all citizens, and they are entitled to them. But there is no general right to marry “whatever I want to.”
No definition of marriage attached to humanity merely because we reproduced sexually.
Actually, this is directly contrary to the position of classical natural law and related philosophies. It their position that marriage is a natural union that is a direct consequence of sexual reproduction, in he broad sense of raising healthy adults, and the division of humanity into male and female. That is, it is engendered by the ends, the telos of our sexual and romantic faculties.
All absolutist states to date have also been absolutist “traditionalists” regarding sex. Stalin, Hitler, Franco, Saudi Arabia, etc. all have been vehemently opposed to homosexuality, adultery, “pornography” and in favor of burkas for women and rigid childhood discipline (e.g., no sex, no masturbation, even). Stalin, Hitler sent anyone outed as gay to death camps.
There is no, no, no connection between “conservative: sexual morality and rationality and freedom from tryanny. In fact, as history shows, “consevative” sexual mortality is the absolute enemy of rationality and liberty.
Anyway, this whole marriage thing leaves me bemused. In American and in Europe, heterosexuals no longer marry. Homoseuals are clearly two or three generations in retard. We all know the statistics. Many Whites are bastards. 75-80% of Blacks are bastards!! This is not unique to the USA. In France, only 25% of straight men men. Yet, when Hollande opened marriage to gays, there were riots.
Why are you guys trying to preserve something you don’t believe in and don’t practice. (As the bible, says Faith without works is dead). American heterosexuals believe in, have faith in marriage; they just don’t practice marriage. they don’t do the “works” of marriage.
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