Friday, March 29, 2013

Odds and ends 3/29/2013

I didn’t think standing would be an issue in Hollingsworth v. Perry, but, looking at the amount of time the Supreme Court justices spent on it during oral arguments, apparently it is.

Standing means being injured by the law being challenged or action being threatened. After Proposition 8 passed, California attorney general (and past and future governor) Jerry Brown refused to defend the law in federal court. That left defending the marriage statute to the same groups that lobbied to pass it. However, there was no ostensible reason a reversal of Proposition 8 would harm its defenders. A reversal would expand privileges that Proposition 8’s defenders enjoy, not take privileges away.

This is bogus. A majority of Californians in 2008 defined marriage between a man and a woman. Apparently they thought their interests would be served better by this definition, and not the gender-neutral one imposed by the California Supreme Court.

Is no one besides derelict attorney general Jerry Brown qualified to defend the statute? John Bursch of SCOTUSblog notes:

It seems peculiar that the executive could insulate a lower court’s ruling striking down a congressionally enacted statute from Supreme Court review by refusing to defend. Someone must be able to vindicate the constitutionality of the challenged law.

Aside: Bursch thinks it likely Justice Kennedy will strike down Section 3 of the Defense of Marriage Act, but uphold Proposition 8. This means the federal government will recognize marriage in every state. This would leave in place Section 2 of DOMA, which allows states to not recognize marriages from other states.

The traitor John Roberts suggested during oral arguments that a California justice of the peace who refuses to marry a same-sex couple would have standing to defend Proposition 8. If a majority on the Supreme Court agrees with him that Proposition 8’s defenders lack standing, they will let Judge Vaughn Walker’s ruling—overturning Proposition 8—stand.

I welcome this outcome. It would avert the ruling that all traditional marriage statutes—from Arizona to Virginia—are unconstitutional. But it would not guarantee the failure of legal challenges in those states against traditional marriage. The best outcome would be what Bursch predicts: a ruling to uphold Proposition 8.

Libertarian Richard Epstein doesn’t see that happening:

The question is whether Justice Kennedy is trapped by his earlier decision in Lawrence. I think that he is. The strongest case for striking down all barriers to gay marriage rests, I think, on the inability of the state to find any defensible rationale to insist on the same traditional definition of marriage that it rejected in the criminal sodomy cases. The key point here is that the state exercises a monopoly power in the use of the criminal law and in the granting of marriage licenses or tax deductions.

In the Prop 8 case, California uses that power to ban the relationship. In Windsor, the United States uses that power to deny some citizens tax benefits that only it can confer upon others. Once the morals argument is rejected, the correct view of the situation is that the state, as a monopolist, cannot discriminate among individuals that are otherwise equal before it in all relevant respects.

Lawrence v. Texas was the 2003 Supreme Court case that struck down Texas’ anti-sodomy law. Justice Scalia’s dissent was prophetic:

One of the benefits of leaving regulation of this matter to the people rather than to the courts is that the people, unlike judges, need not carry things to their logical conclusion. The people may feel that their disapprobation of homosexual conduct is strong enough to disallow homosexual marriage, but not strong enough to criminalize private homosexual acts–and may legislate accordingly. The Court today pretends that it possesses a similar freedom of action, so that that we need not fear judicial imposition of homosexual marriage, as has recently occurred in Canada (in a decision that the Canadian Government has chosen not to appeal). At the end of its opinion–after having laid waste the foundations of our rational-basis jurisprudence–the Court says that the present case “does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” Do not believe it. More illuminating than this bald, unreasoned disclaimer is the progression of thought displayed by an earlier passage in the Court’s opinion, which notes the constitutional protections afforded to “personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education,” and then declares that “[p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.” Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct; and if, as the Court coos (casting aside all pretense of neutrality), “[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring,” what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “[t]he liberty protected by the Constitution”? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry.

UPDATE (6/26):

A version of this rumination appears at the Red Pill Report.

Now, on to the show. It’s right to start with none other than Public Discourse editor Ryan T. Anderson, writing at Heritage:

In recent decades, marriage has been weakened by a revisionist view that it is more about adults’ desires than children’s needs. This view reduces marriage primarily to intense emotional bonds.

If marriage were just intense emotional regard, marital norms would make no sense as a principled matter. There is no reason of principle that requires an emotional union to be permanent. Or limited to two persons. Or sexual, much less sexually exclusive (as opposed to “open”). Or inherently oriented to family life and shaped by its demands.

Redefining marriage would further distance marriage from the needs of children and deny the importance of mothers and fathers. It would deny, as a matter of policy, the ideal that children need a mother and a father.

Redefining marriage would also diminish the social pressures and incentives for husbands to remain with their wives and their biological children and for men and women to marry before having children. It would be very difficult for the law to send a message that fathers matter once it had redefined marriage to make fathers optional.

Because fathers’ biological role in their children’s lives begins at coitus and ends at conception. The majority of single-parent households are headed by the parent whose biological link to the child is stronger: the mother.

Commenter “Jive Bomber” sums up my attitude in as few words as possible:

Based on the liberal rationale for gay marriage, I can't think of any reason why polygamy would continue to be illegal.

Because equality!

Jeffrey Lord writes a hilarious endorsement of polygamy, posing as Hillary Clinton:

A few years ago, Bill and I celebrated as our own daughter married the first serious love of her life. I wish every parent that same joy. To deny the opportunity to our own daughters and sons to have multiple partners solely on the basis of how many they love and when they love them is to deny them the chance to live up to their own God-given potential, as Bill has so often said to me.

Patrick Ryan of the American Spectator laments how marriage has already been redefined:

The rise of divorce coincides with the development of our nation’s service economy. Young people get married later and later in life after finishing their educations, as marriage doesn’t occur until “a young adult is vocationally, psychologically and financially set.” Yet it used to be the “foundation for adult identity, finances, and family…”

No longer do the young base their jobs and careers upon supporting families; marriage is now something one financially prepares for. Four or five generations ago, young twenty-year olds did not seek to “find themselves” as much as we do now.

Rather than the ideal of a permanent, monogamous, and sexually exclusive relationship between a man and a woman that existed 40 years ago, marriage is now viewed more as an emotional commitment. It’s a long-term objective for both men and women instead of an institution for stabilization.

Lisa Fabrizio:

The left knows it is only the Christian right that stands between them and the total control over all American life that has been their goal, and that of all communists/socialists, for decades.

Jonathan Last, author of What to Expect When No One’s Expecting, writes at the Weekly Standard:

At root, the same-sex marriage project isn’t even really about opposition to the family as it is currently conceived—no matter how outmoded and bourgeois it may be. No, the family is just necessary collateral damage in the real struggle for sexual liberation. I suspect that, to the left, arguments about contraceptives, abortion, and gay marriage are really all about the same thing: the idea that sexual behavior must not be discriminated against, by anyone, in any sense. There must be no adverse outcomes; there must be no distinctions made; and any form of disapproval is tantamount to discrimination. Other freedoms—of speech, of liberty, of thought—may be, to some extent, negotiable. But for the left, sexual freedom is a paramount freedom.

R. R. Reno, channeling George Gilder, describes the meaning of marriage:

Like our reproductive potency, which seems to transcend death, men and women are drawn to each other in a way that seems to tap into the power of immortality. Love sums up these two dimensions, as the novels of D. H. Lawrence often make explicit: We make love and beget; we’re united in a love that conquers our atomized individuality.

Here’s the quote from Gilder I’m reminded of:

If the power of “choice” is given up, the woman actually ascends to a higher level of sexuality and her body attains an almost mystical power over men.

Gilder is infinitely quotable. There is a quality of deep revelation in the way he writes. I’m only partway through Wealth and Poverty, and it has already influenced a couple of blog posts I’ve written this year.

More from Reno:

Our society seems determined to redefine marriage. To a great degree that’s already completed. Contraception has largely removed fertility from the sexual unions of men and women. No-fault divorce has allowed the vagaries of our affective unions to control the meaning of marriage rather than love’s desire to achieve a union from which we cannot withdraw ourselves. Now we’re poised to jettison the male/female difference that makes marriage a natural sign of a supernatural grace: the miracle of human fertility and its power of new life, and the miracle of a lasting peace in the war between the sexes.

These developments bode ill. Our society will have greater difficulty seeing flashes of eternity in sexual desire and in emotional unions between lovers—a disenchantment very much to be regretted. And the natural sign of God’s love will lose some of its power. Without the male/female difference, there’s no natural mystery to illuminate the supernatural mystery of God’s offer of matrimony to us in Christ.

Daniel Horowitz writes:

What is at stake this week at the Supreme Court is not just the redefinition of marriage and the fabric of civilization. It’s whether Americans will continue to have the liberty to recognize and defend the most fundamental building block of civilization. States are already free to recognize anything they desire to be a marriage. That has never been negated by DOMA, nor will it be countermanded by any outcome of the two court cases. On the other hand, we already know that 4 Justices will almost certainly rule that gay marriage is enshrined in our Constitution, to the extent that states and even the people are precluded from retaining the most basic definition of marriage. All they need is one more vote from either Anthony Kennedy or John Souter Roberts.

Steven Smith assails “equality” at Public Discourse:

No answers can be squeezed out of the idea of equality, as [Peter] Westen’s article [“The Empty Idea of Equality”] explained. Instead, we have to refer to our political philosophies or our moral views or something of that sort. Something more substantive than the unassailable but substantively empty proposition that “like cases should be treated alike.”

Consider an example. We would treat blind people differently either by denying them the right to vote or by denying them drivers’ licenses. But we would treat them unequally only in the first case, not in the second. That is because an ability to see is not a relevant qualification for voting, but it is a relevant qualification for driving. We know this, though, not by applying the idea of “equality,” but rather by thinking about the nature of voting and of driving. Probably there is no disagreement about these particular conclusions. But if you did happen to encounter a good-faith disagreement, you would not be saying anything helpful if you thumped the table and declared that “blind people should be treated equally.” You would only be begging the question.

What is marriage? That is the question. Anderson, Girgis, and George’s book is on my reading list. I’ve been content with reading positive reviews. Andrew Koppelman writes a mixed review for Commonweal. Excerpt:

A central objection to this claim, one that I have pressed upon these authors elsewhere, is that the argument cannot explain why heterosexual couples who know themselves to be infertile are within the charmed circle: a sterile person’s genitals “are no more suitable for generation than an unloaded gun is suitable for shooting.” (Their characterizations of my objections are scrupulously fair and accurate.) When the couple is infertile, they reply, their bodies “are still united in coitus as much as organs of a single body are united: toward a single biological good (reproduction) of the whole that they compose together.”

This claim, unlike the single-organism notion, is coherent. A broken gun (even an irreparably broken gun) is still a gun, and its parts are still united with one another, oriented toward a purpose, even though they do not work properly. The same is not true of a pile of gun parts. The infertile heterosexual couple is united with one another in the same way in which the parts of a broken gun are united with one another.

But this move still leaves a puzzle about why the infertile heterosexual couple has achieved a good that the same-sex couple cannot achieve. They argue that the infertile couple’s union is “a valuable part of a valuable whole.” But what value would there be in deliberately assembling an irreparably broken gun? The product would have a kind of unity, but the goodness of that unity, as a reason for action, is mysterious. Is not the asserted intrinsic goodness of the procreative-type acts of infertile heterosexuals similar?

Joshua Schulz of First Things rebuts:

Such criticisms of the natural law argument make elementary philosophical mistakes. Suppose we agree that the purpose of an automobile is to travel. This is a statement about the essence of cars, the class of car-ish machines, and not about the present capability of any particular car. [Maureen] Dowd’s argument against the teleology of marriage is equivalent to someone arguing that, “well, my car won’t start—either because it broke down, or, heck, maybe because I yanked the spark plugs—so cars must not be for traveling.” Clearly the fact that a particular car won’t start is as irrelevant to the determination of whether cars are for driving as the fact that a car is blue or red...

In contrast, the natural law argument is that government has an interest in behavior that is essentially procreative and only accidentally sterile (through age or deliberate sterilization via contraception) and not in essentially non-procreative behavior. Procreative behavior is governed by norms of fidelity, exclusivity, and indissolubility because it is the kind of behavior that creates children, and such behavior creates rights in children that are correlative with parental duties in adults. Marriage is a duty, not a privilege.

At MercatorNet, Robert R. Reilly responds:

Infertility equivalence also presumes equivalence between the kinds of acts in an infertile heterosexual union and in an impotent homosexual one. Regardless of its fertility or infertility on any specific occasion, the coital act is procreative by its nature – as only it can produce life – even when and if procreation does not result, as it does not in the vast majority of cases during a couple’s fertile lifetime. Is the nature of marital relations fundamentally different during the frequent instances when pregnancy does not occur? Are those acts, then, equivalent in kind to sodomy? At a certain point, all heterosexual couples become permanently infertile due to age, but does this make the character of their acts sodomitical? It does not. They are no less marital or generative in their nature because they always remain, in their “one-flesh” aspect, unitive – something a homosexual act can never be. Unitive coition is obviously the necessary precondition for procreation, which is why these acts remain generative in their essence.

However, sodomy, by its nature and in all circumstances, is a non-procreative act. One might even say that it is an anti-procreative act. Sodomy and coition have never been treated the same before because they are not the same. Judge Walker’s ruling and the current case against Proposition 8 rest on a denial of this. If these two acts can be equated, then treating them differently would be wrong. In the law, like must be treated alike. It is with the implicit conflation of sodomy and the marital act that Judge Walker and the current litigants try to manufacture the charge of the denial of equal protection and discrimination against Proposition 8.

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