Sunday, August 22, 2010

The Last Straw, the First Post (Part I)

     Recent events have prompted CONSVLTVS to begin this web log. The intent is to provide a spirited but civilized defense of what is good in American traditions while remaining open to healthy innovation.

     One innovation that would prove unhealthy to the body politic is now upon us. With the moral imperialism characteristic of the Left, U.S. District Judge Vaughn R. Walker has just found a brand new right in the Constitution: gay marriage. There are three reasons to lament (and work against) this decadent ruling. First, it is a usurpation of democratic power, one more in the familiar series of judicial affronts to representative government. Second, the ruling articulates a philosophy of breathtaking denial, in which the plain truth about men, women, and marriage is simply wished away. Third, it will inevitably lead to further dilution of marriage as a social and legal institution, to the serious peril of existing society.

     The arguments against judicial activism are not new, but they seem to need re-stating. When a judge decides that a new claim made by a given group amounts to a right that should receive protection under the equal protection clause, he or she is amending the Constitution. But the whole point about constitutions is that they are supposed to be hard to amend. In particular, our Constitution has explicit procedures for doing so, and those procedures wisely require an overwhelming political consensus before a change is made. When judges amend the Constitution themselves, they circumvent the procedure of the very document they pretend to serve. In effect, they act as dictators.

     In the case of so-called gay marriage, the judge’s ruling is not just dictatorial it is imperialistic. No culture in western history—not even ancient Greece—has ever considered a lifelong partnership between homosexuals to be marriage. Every society in the West, and the near totality of societies worldwide throughout history, has understood marriage as the union of the male and the female for the purpose of perpetuating the society of which the couple is a part. Homosexuality itself has been tolerated in the past, and such tolerance is commendable. Societies with laws calling for homosexuals to be killed, as in the Taliban’s Afghanistan, are barbarous and cruel. Civilized nations celebrate the remarkable contributions of some homosexuals throughout history, and deplore any pogrom. However, permitting homosexuals to live their lives in quiet dignity is one thing; capitulating in their conquest of our norms is another.

     For that is what Judge Walker and the Left are attempting to do: conquer an existing social norm and impose something new. If the Left were truly just concerned with fairness, the existing civil union statutes in California would have been enough. CONSVLTVS understands that civil union in California conferred on gay couples all the material benefits of marriage under state law. The law reserved only the term “marriage” itself. The judge’s ruling really is about forcing the people of California to redefine their concept of marriage to suit him. This is the attempted conquest of a word.

     Cultural imperialism is not new. Step one in the process is to promote a tacit consensus of moral relativism. All morality is a matter of agreement, says the standard Leftist argument, and so all moral codes are to be considered of equal value. Step two is to turn the relativistic acid on traditional morality and claim that it deserves no special privilege. Relativism thus corrodes the previous consensus on morality. Finally, via verbal sleight of hand, the Leftist next claims the right of privilege for his or her own code, over that of traditional morality. This legerdemain is self-refuting, of course, for if all moral codes are equal, then why should the code of the Left be superior to traditional morality? What principle gives the Left the right to impose its own moral code on the existing culture?

     Another trick in the current dispute involves replacing root assumptions. By tacitly assuming that marriage exists mainly (or even only) for the satisfaction of the married couple, the Left is able to disregard the role of marriage in every Western society for which we have records. The point about marriage, indeed the plain truth about it, is and always has been that marriage exists for the benefit of children, and ultimately the community and the state, as much as for the married partners.

     Marriage provides for the perpetuation of the body politic through the succession of generations. This succession necessarily involves procreation, for new citizens must be born for a people to continue. Could anything be more obvious than the sterility of a homosexual union? Moreover, the very fact that a union of man and woman can produce offspring is what justifies the state involvement in marriage from the start. The consequences to the community of illegitimacy and paternal abdication are enormous, as dispassionate observers have noted in the recent history of the West. Therefore, society historically solemnized the marriage relationship as a means of encouraging responsible behavior and strong families. The fact that so-called gay marriage is even being discussed shows how weakened the traditional understanding of the purpose of marriage has become. Indeed, when the sole purpose of marriage becomes the enjoyment or fulfillment of the participants, there will be no logical argument available against Polygamy. At least Polygamy is not unknown to history.


  1. Excellent analysis, GTChristie. One point I have wondered about lately involves a legal point in California law. Since posting this I have confirmed that California already provided, by separate legislation, that civil unions between homosexual partners would confer—excuse me, “shall confer,” which is imperative language—all the same rights as marriage. So, we really are down to arguing about a word.

    This puts the appellees (those challenging Proposition 8, who won at the District Court and are now answering the appeal to the 9th Circuit) in an interesting bind. On the one hand, they may be tempted to argue (as many on the web have) that since it’s only a word, well, what’s all the fuss? Why should society get to deny them something so insignificant? But, of course, if it’s really insignificant, then they have not been harmed. That is, since they already enjoyed all the tangible benefits of marriage through the civil union statute, they have suffered no actual legal harm. If they have suffered no legal harm, then there is no basis for the suit. Case dismissed on summary judgment.

    On the other hand—and this I think is the way they must go—they could argue that denial of even the word marriage does harm them in some way. As I understand the judge’s ruling, he even said as much. The problem with this approach is that if denial of whatever inchoate value there may be in the status of matrimony is a legally redressible harm to homosexuals, then forcing the redefinition of matrimony is a legally congnizable harm to the rest of us.

    We’ll see how the court rules in due course.

  2. That analysis of the parties' standings in the case is eye-opening. I don't think in those terms (you're the lawyer!) normally but ... how very interesting. Elsewhere I've read a proposal to extend specific rights now available to married couples to alternative unions, sidestepping the necessity of marriage. The thinking was, if those rights are the genuine issues for the G-BLTs, it shouldn't matter if they can be guaranteed without encroaching on the traditional definition of marriage. If they're serious about their rights, and not (as some suspect) more concerned with tearing down a religious sacrament, they can have their cake and eat it too. But I suspect that, like most things on that end of the spectrum, they see compromise as surrender. It would be wonderful to see that smoked out into the open with an argument like yours which demands better grounds for dismantling 250,000 years of human culture.

  3. Apart from the legal challenge- did you personally support the CA civil unions? What is your view on the NY law?

  4. How much of your concern is merely an objection to process regarding the creation and interpretation of the law, and how much is about gay marriage itself?

  5. ockraz-glad you stopped by.

    Not being a CA voter, I did not even know about the civil union law until the gay marriage issue arose. My thought on the NY law is that it's much, much better for a such a change to be brought about by a legislature than by a court. That said, and this answers your second question, I oppose gay marriage for itself.

  6. Do you feel the same way about civil unions?

    It seems (to me at least) rather counterintuitive for someone who is an atheist/agnostic/nontheist to object to gay couples being able to have access to legal rights as couples which are comparable to those granted to heterosexual couples through marriage.

    On the other hand - I do understand that there are secular arguments (which I understand to be based on virtue ethics [?] rather than deontology or consequentialism) that promote tradition because it's seen as beneficial to society at large. Are your views of that sort, like Burke or Alisdair MacIntyre?

  7. To redefine marriage to include same-sex couples is to define marriage out of existence. It is then entirely about the satisfaction of the partners and is of a piece with the rest of the post-1960s hedonism. No country built on such values can remain free. There is also no precedent of gay marriage as a healthy institution, and we should take the lack of such a tradition in history as a clue to what is and is not viable (see Part II).

    Civil unions? Originally I thought they would be fine, but, as we've seen in California, they do not satisfy the aggressive gay rights squadrons. Apparently nothing short of destroying traditional society will do for them.