Category: Family

Not the SCOTUS comments you might expect

I’m disappointed at our Supreme Court’s Wednesday decisions, but I’ll not annoy you with my cries de coeur. They’re in my private journal as they occur to me.

The Court ruled that Prop 8 proponents were not the right party to bring the suit. Wherever vague and conflicting standing doctrine points, its application here eviscerated the California referendum process. That process was designed to let citizens pass laws, and amend their constitution, to check and balance government officials. If those same officials can effectively veto provisions of the state constitution by refusing to enforce and then refusing to defend them, the point of the referendum process is defeated.

(The Supreme Court, You and Me, and the Future of Marriage)

Did you get that? It didn’t say “Blah blah blah blah blah.” The California referendum process is their to let California voters overrule their elected officials. It isn’t an easy process. As I recall, the Attorney General gets to edit the referendum question to some extent, and the Attorneys General use that power to skew voting as much as possible in the direction they want.

Now, if the voters repudiate their masters by clearing all those hurdles, it appears that the government can just smirk and play their final trump card: refuse to defend and trust than nobody else has standing. Perhaps there could be voter standing if the party or parties seeking to defend could demonstrate particular and tangible harm, but that’s not likely to be true on most of the day’s vexed social issues.

[E]ven some who cheer the [DOMA] decision have called its reasoning less than coherent or satisfying.

(Ibid.)

DOMA, [Justice Kennedy] goes on to insist, must have been motivated by a “bare desire to harm,” or “to disparage and to injure.” Its sole purpose and effect is to “impose inequality,” to deny “equal dignity,” to “humiliate.” He infers all this from a few passages in its legislative history about defending traditional morality and the institution of traditional marriage, from its effects, and from the act’s title. Most importantly—and scandalously, given his obligations as a judge—Kennedy does so with nothing more than passing reference to arguments made for DOMA in particular, and conjugal marriage in general. How else could his reasoning leap from the people’s wish to support a certain vision of marriage, to their alleged desire to harm and humiliate those otherwise inclined?

The effect of this refusal to engage counterarguments is the elevation of a rash accusation to the dignity of a legal principle: DOMA’s supporters—including, one supposes, 342 representatives, 85 senators, and President Clinton—must have been motivated by ill will.

(Ibid.)

In his DOMA dissent, Justice Alito goes out of his way to frame the central issue of both cases: They involve, he writes, a contest between two visions of marriage—what he calls the “conjugal” and “consent-based” views. He cites our book as exemplifying the conjugal view of marriage as (in his summary) a “comprehensive, exclusive, permanent union that is intrinsically ordered to producing children.” He cites others, like Jonathan Rauch, for the idea that marriage is a certain commitment marked by emotional union. And he explains that the Constitution is silent on which of these substantive, morally controversial visions of marriage is correct. So the Court, he says, should decline to decide; it should defer to democratic debate.

The Court is likelier to defer to democratic debate if it believes there’s a genuine debate to defer to.

(Ibid.) The supporters of the traditional (conjugal) view of marriage must not let liars like Justice Kennedy silence them by baseless accusations of ill will. That is a partisan ploy, and has long been a conscious tool of the proponents of SSM. Nobody who respects truth will resort to this accusation.

For the record, I still support the traditional view of marriage and, as a corollary, must oppose same-sex marriage. I support the traditional view for many of the views set forth in What is Marriage? And I say that as one who has esteemed members of my extended family who experience same-sex attraction — one who no doubt will marry as soon as his state allows it (if he hasn’t already traveled to a state that does). My son’s most influential high school mentor was a barely-closeted gay man. He was “barely” closeted only because the smut-mongers wouldn’t leave him alone, to conduct his professional life with integrity, neither affirming that he was gay nor denying it. His sexuality was, properly speaking, not relevant — but some creeps, and more particularly, Church Lady Creepettes, insisted that They Knew, and demanded his brilliant, inspiring head on a platter. Thanks to them, perhaps (he won’t give them the perverse pleasure of confirming that they led him to leave), students now are spared his brilliance, and the program he led shows it.

It pained me more than once to stand in public meetings and oppose what I thought misguided in front of him and other closeted or “out” friends and acquaintances with same-sex attraction.

Justice Alito is right about their being two competing views. One of the things I’ve learned this Spring is that the traditional view is waning partly because young people don’t know about marriage history and falsely assume that the traditional view was invented, a la Justice Kennedy, out of desperate need to disguise the ill will that motivated opposition to SSM. But that’s not true:

Consummation or consummation of a marriage, in many traditions and statutes of civil or religious law, is the first (or first officially credited) act of sexual intercourse between two people, either following their marriage to each other or after a prolonged sexual attraction. Its legal significance arises from theories of marriage as having the purpose of producing legally recognized descendants of the partners, or of providing sanction to their sexual acts together, or both, and amounts to treating a marriage ceremony as falling short of completing the creation of the state of being married.

This is from the notorious right-wing Christianist website, Wikipedia.

Before same-sex anything was at stake, our society was already busy dismantling its own foundation, by innovations like no-fault divorce and by a thousand daily decisions to dishonor the norms of marriage that make it apt for family life. Atomization results from these forms of family breakdown—and from the superficially appealing idea that emotional closeness is all that sets marriage apart, which makes it gauche to seek true companionship and love in non-marital bonds. Part of rebuilding marriage will be responding to that atomization—reaching out to friends and neighbors suffering broken hearts or homes, or loneliness, whatever the cause. That, too, will make the conjugal view of marriage shine more brightly as a viable social option.

(The Supreme Court, You and Me, and the Future of Marriage) True. All true. There are threats besides, and probably greater (if only because they’re pandemic in the 98% that isn’t same-sex attracted), than same -sex marriage. But it’s the most acute at the moment. The others are chronic.

Finally, a collateral reason why I oppose the Tsunami:

This is perhaps the most remarkable thing about this entire debate: how so many who favor gay marriage — including, apparently, five members of the US Supreme Court — see absolutely no reason why anybody could oppose [SSM] in good conscience. We trads are not just wrong, but wicked. We are entering a dangerous world for believers. Expect to see the Law of Merited Impossibility fulfilled a lot more in the years to come. I defined it once as:

The Law Of Merited Impossibility is an epistemological construct governing the paradoxical way overclass opinion makers frame the discourse about the clash between religious liberty and gay civil rights. It is best summed up by the phrase, “It’s a complete absurdity to believe that Christians will suffer a single thing from the expansion of gay rights, and boy, do they deserve what they’re going to get.”

(Frightening the Horses)

This has by no means been a comprehensive overview of the last 34 hours’ commentariat, nor as I indicated, of my own opinion, but I thought it probably was enough out of the mainstream that you might miss it despite the merits.

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“The remarks made in this essay do not represent scholarly research. They are intended as topical stimulations for conversation among intelligent and informed people.” (Gerhart Niemeyer)

Some succinct standing advice on recurring themes.

Foreseeing the unintended

I am struck again and again about how well-intentioned acts have unintended consequences. Sometimes the act “was worth it” despite the consequence; sometimes not.

Redefining so fundamental an institution as marriage should be preceded by a lot of hard thinking about the consequences, and the burden of proof should be set quite high. So far, the hard thinking has mostly been replaced by the equivalent of “Oh, what the hell – why not?” or question-begging slogans like “marriage equality” (the begged question being “what is marriage?”)

There’s no miracle cure for insouciance or sentimentality, but some people are just so busy that they don’t have time to think things through on their own. I’ve thought about the issues a lot, but I’ve been aware that time constraints (if not the constraint of waning cognition) have left me short of the clarity I wanted.

Fortunately, some people really have given this a lot of thought. I’ve been tutored a lot lately by people who’ve either come at it from the somewhat abstract direction of natural law or who have broken out of that mold and just considered practical consequences carefully. But none of the arguments are, so far as anyone has convinced me thus far, compelling in any 5-second sound bite format. Apprehending them, let alone comprehending them, takes sustained attention that’s rare these days.

To start with, when the characterization “redefining marriage” is uttered, I’ve come to realize that many people hear it as something like this:

I have a deep and irrational hatred of gay men and lesbians, but I recognize that such hatred is socially unacceptable. So I’m going to gussy it up with some pseudo-principles and imaginary history.

(Convention requires that I now deny hatred: I do deny it, and that’s all I’m going to say. This isn’t about me.)

I can illustrate, from recent essays by Robin Phillips why “redefining” is quite an appropriate term (along the way hinting at some baneful consequences of the redefinition). The fundamental redefinition involves eliminating the element of consummation from the concept of a real (i.e., complete) marriage:

It is interesting … that in the literature of the gay and lesbian community, the specifically sexual dimensions of marriage are increasingly being downplayed, and that is why I have argued elsewhere … that same-sex ‘marriage’ carries with it many Gnostic assumptions about the body.

The de-emphasis of the physical dimensions of marriage has resulted in the UK government announcing that the concept of consummation and non-consummation will be inapplicable to ‘marriages’ conducted by homosexuals. When the news surfaced … that the government had decided that both consummation and adultery couldn’t be committed by two people of the same sex, many people puzzled at this, even though it was the logical outworking of the sex-less descriptions of “union” propagated amongst the agitators for gay marriage. You see, once our understanding of “union” in marriage is reduced to “a loving relationship between two committed adults”, then what two people do with their bodies becomes extrinsic rather than intrinsic to that union. But in that case, it is possible, in principle, for gay marriages to occur between two people who are celibate. By contrast, for a heterosexual marriage to be “consummated” (that is, to be a fully complete marriage), there is an act the husband and wife must perform with their bodies. Hang on to that thought, because it has profound ramifications for how we understand the family’s relationship to the state.

…

In the case of the conjugal view, there is an empirical reality we can point to when establishing whether a relationship is really a marriage, or at least a complete and consummated marriage. Have they had sexual intercourse? But we have seen that there is no corresponding empirical reality that can constitute what it means to be in a marriage regulated by the first definition [“a committed and loving relationship between two consenting adults”]. Indeed, a person might have a “committed and loving relationship” with any number of other persons without it being marriage.

Now precisely because of this, the only way that a committed and loving relationship can be upgraded into marriage is if the state steps in and declares that relationship to be a marriage, in much the same way as the state might declare something to be a corporation or some other legal entity. By contrast, conjugal marriages have and could exist without the state’s recognition because it is fundamentally a pre-political institution. Marriage is pre-political in the sense that it has intrinsic goods attached to it, not least of which is the assurance of patrimony and thus the integrity of inheritance. Such goods do not exist by the state’s fiat even though the state may recognize, regulate or protect them.

An imaginary example should make my meaning clear. If an unmarried man and a woman are shipwrecked on an island together with no one else around, and they decide to be husband and wife, it is meaningful to talk about them getting married and having a family even in the absence of a civil government … By contrast, one cannot say the same about two homosexual men or two homosexual women on an island who decide to get “married”. Without the mechanisms of the state to confer the status of marriage upon two members of the same sex, there are no acts that organically mark the relationship out as being marriage within a state of nature. Indeed, the philosophy behind same-sex marriage is one which makes both marriage and family entirely the construct, and therefore the province, of positive law.

…

Since consummation is unnecessary for a same-sex union to be called a complete marriage (even putting aside the question of what would count as consummation within a same-sex context), then what determines whether or not a heterosexual marriage is complete? Either we can have two separate non-equal definitions of marriage, or we can realize the logical consequence of same-sex marriage and say that the only thing left to determine what actually makes something a complete marriage or a legitimate family is the law itself.

Why Gay ‘Marriage’ is a Public Threat (part 1 ) (emphasis and hyperlinks in the original)

[P]eople do not understand what a fundamental revision of family law will be required to accommodate gay marriage. For example, in my secular job, I work for the state child support agency, and so deal with questions of paternity and marriage regularly. In our current legal system, the law presumes that any child born within a marriage is the child of the married couple — that presumption can be rebutted with evidence to the contrary, if the husband wish to make that case in court (usually in a divorce), but that is the presumption. When I was born, I did not have a DNA test to prove who my father was, and when my children were born, they did not have a DNA test. We also did not need to go to court to establish that I was the father, because by law, that was presumed to be the case. If you have two lesbians that are married, can we presume that the other woman is the father of the child if their “spouse” has a child? And if they later divorce, and the other spouse wanted to rebut the presumption that they were the parent with DNA (which obviously would not be hard to do), should they be let off the hook when it comes to child support? Does the actual biological father have no rights in such a case? Should such a child have two parents on their birth certificate, or three? These are the kinds of questions that will rewrite our family law if we throw this monkey wrench into the works.

…

The fact is that if the government gets out of “the marriage business” it will result in the government becoming more involved in our personal lives rather than less, because the government will have to set up new laws and new mechanisms to deal with issues that we have always dealt with by basic principles of family law that automatically come into play when a man and a woman are married.

Fr. John Whiteford, quoted in Why Gay ‘Marriage’ is a Public Threat (part 2). I’m tempted to boil that down, but again, it seems to require sustained argument to make the point as it needs to be made. (Yes, I know that surrogacy and artificial insemination by donor in true marriages present similar issues, but I don’t endorse them, either.)

Once the conjugal pairing gives way to “a loving relationship between … committed adults,” my elliptical omission of “two” is justified because “two” becomes just as arbitrary as “male and female.”

These types of warnings are often objected to on the grounds that it is a fallacious ‘slippery slope argument.’ But as Girgis, Anderson and George remind us …,

“there is nothing wrong with arguing against a policy based on reasonable predictions of unwanted consequences. Such predictions would seem quite reasonable in this case, given that prominent figures suchas feminist icon Gloria Steinem, political activist and author Barbara Ehrenreich, and New York University Law Professor Kenji Yoshino have already demanded … legal recognition of multiple-partner sexual relationships.

Why Gay ‘Marriage’ is a Public Threat (part 2).

I’ve blogged on these issues a lot this Winter-into-Spring, motivate by the extensive discussion surrounding Supreme Court arguments in the U.S. If you’re insouciant or incorrigibly sentimental, you won’t have made it this far. If you have made it this far, I commend to your further attention both of the Robin Phillips essays.

It comes down to this in the end: Whatever goods are served by long-term erotic relationships between two members of the same sex, they are not the goods served by marriage. It’s the demonstration of that that takes time.

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“The remarks made in this essay do not represent scholarly research. They are intended as topical stimulations for conversation among intelligent and informed people.” (Gerhart Niemeyer)

Some succinct standing advice on recurring themes.