May 15, 2008
Californichusetts - bumped from March pending new post
Surprise, surprise, the California Supreme Court is currently deciding (yet again) whether to tell California voters to go to hell, and to order the era of gender-neutral marriage... just as Massachusetts did! Thanks; I always wanted us to take our lead from Hyannisport.
So let's put on our manly gowns, gird our loins, and pull up our socks: It's time to deal with this invitation to cultural suicide once more.
It boils down to two questions:
- Doesn't the "equal protection" clause of the state constitution require the legalization of same-sex marriage (SSM) as a state constitutional right?
- Even if there is no "right" to SSM, isn't it a good idea to expand marriage to be more inclusive?
On a nutshell, he answer in each case is No -- it doesn't and it isn't. The rest of this post explains why.
How equal is "equal protection?"
In California, it's not just the state legislature that has defined marriage as a union between one man and one woman (explicitly in 1977, implicitly earlier); the people themselves did so in 2000 via Proposition 22, which added Section 308.5 to the state's California Family Code:
The citizen initiative passed overwhelmingly. If a court overturns it, it had better be because the court found it violates a clear, undeniable, and unambiguous right... not just because four justices voted against it seven years ago, and now they have their revenge.
But the only legal argument ever offered is that the rule violates the "equal protection" clause of the California constitution, Article I, Section 7:
Proponents of SSM say equal protection is violated for a homosexual, because he cannot marry the person that he wants to marry. But of course, a heterosexual also cannot marry the person he wants to marry if one of them is already married, they're too closely related, or one of them is too young. Throughout human history, marriage has always been strictly limited to certain types of unions; it has never, in thousands of years of human history, been an unrestricted right.
Gender is just one of the restrictions; if the others don't violate equal protection, then neither does the gender restriction. And if it does violate equal protection... then what's the legal rationale for banning polygamy?
Cat got your tongue? "But my four wives and I really love each other!"
With all restrictions dropped but the declaration that "we love each other," what's to stop gang members from all marrying each other, so that none will be able to testify against another? How do you prevent an entire building full of spinsters marrying the same guy, so each can receive Social Security? How do we prevent one American citizen from marrying five hundred Argentinian women and men to bring them all here as permanent residents?
Marriage needs restrictions: Without them, it's no more special a relationship than a bowling team or union membership.
So you're in favor of banning interracial marriages too, huh?
A ban on racial intermarriage has never been a piller of Western civilization; racism itself (per Dinesh D'Souza's the End of Racism) dates only to the sixteenth century. And most of the miscegenation laws in California were passed from 1901 onward, during the "Progressive Era" -- they were Jimmy Crow Lately laws.
Miscegenation laws were not repealed not by the courts, which never found any equal protection violation; in fact, they found no problem with them at all. It was the people, speaking through their state legislature, who rejected racism in the marriage laws in 1948 (after the Progressives and other socialists made those laws progressively restrictive through 1945).
Why did the legislature repeal those laws? Because society decided that there was no significant difference between the races; the differences are purely cosmetic. Thus, there was no compelling reason why a black man could not marry a white woman, or a white man marry a Hispanic woman.
However, nobody except self-described "queers" (radical "gender-free" advocates who proudly use the term on themselves) believes that there is no significant difference between males and females. In fact, we're discovering new differences every year, including distinctions in thought processes, temperment, and styles of exercising authority.
Unlike marriage between black and white, a marriage between two men or two women is completely different in character from a marriage between a man and a woman.
It has a great effect on child rearing -- the correlation between fatherlessness and violent crime and other antisocial behaviors is admitted by every sociologist -- and even on the behavior of the spouses themselves. When men mix only with other men, or women with other women, all the negative traits of each sex are magnified. But when men marry women, both parties moderate their behavior, and we achieve at least some union between yang and yin.
(As kids who grow up with divorced parents now, having two fathers can be terribly confusing and can also lead to the kids playing one Dad off the other. Fatherlessness and overfathering are both very sub-ideal.)
Finally, experience teaches that cultures that allow polygamy, such as traditional Moslem cultures, end up devaluing women and girls to the point where the papa will kill his own wife or daughter if he thinks (or imagines) she has shamed the family name. It's much, much rarer for a father to kill his teenaged son for such imagined shame, because males are so much more important in polygamous cultures. (They may encourage sons and daughters alike to become suicide bombers, but that is completely different: Radical Moslems consider that to be enhancing the family honor. It's like sending sons off to war. But the father rarely murders his son as punishment for shaming the family.)
Societal survival is a compelling interest
Thus, society does have at least three compelling interests in restricting marriage to one man and one woman: The effect on getting and raising children, moderating behavior of individual men and women, and promoting the full equality of the sexes. And equal protection is not violated, because every resident, regardless of sexual preference, may legally marry anyone he wants, provided both meet society's qualifications anent age, sex, number, family relationship, and of course willingness.
If we ever decide to change any of those restrictions, it must come from the people themselves... via the legislature or directly by citizen initiative. The courts should never drive society willy nilly towards the utopian leanings of the judges. That is the difference between leftists, who favor totalitarian, top-down rule by "experts" in all areas of life (from economics to religion to marriage)... and those of us on the right, who prefer individualism, Capitalism, and democracy, where the women and men in society get to decide for themselves, through the ballot box, what axioms define society.
For a perfect example, let me explain why I absolutely support Lawrence v. Texas (the U.S. Supreme Court case that struck down anti-"sodomy" laws across the nation) -- yet I oppose with equal fervor Goodridge v. the Department of Public Health, the ruling by the Supreme Judicial Court of Massachusetts forcing the state legislature to legitimize SSM.
Simply put, Lawrence is individualistic and democratic: It does not require you to accept gay relationships as the equal of heterosexual relationships -- it just prevents you from throwing them in jail for it. It's one aspect of "the right to be let alone." Thus, Lawrence is individualist and conservative... modern conservatism has always recognized freedom of conscience in principle, even if some individual choices carry enough "ick" factor to tempt conservatives to make an unwarranted exception.
But Goodridge is totalitarian and leftist: It requires you to treat SSM exactly the same as mixed-sex marriage, and to hell with your deeply held religious beliefs. That is not the role of the courts.
SSM supporters twist words to impose a total, top-down transformation of society to fit the utopian ideology of the Left, using the phrase "equal protection of the laws" as a weapon to overthrow the democratic process -- quite literally, in the case of California and our Proposition 22. So on to question two...
What's so bad about SSM anyway?
This section will be briefer than it could be -- I could write an entire book! -- because I'll just sketch the argument; if you want more specifics, type "same-sex marriage" into the search box in the right sidebar and read my earlier posts.
Simply put, here is the syllogism on which I operate:
- Our society ultimately rests on a small number of irreducible axioms: inalienable rights, government by consent of the governed, etc.
- One leg of the stool of Western civilization is the marriage of one male to one female. This has been the definition in our society going back thousands of years. It encourages the interaction of male and female and the civilization of boys, female equality and women's rights, and the rights of children. It has dramatically shaped our culture.
- But not irreversibly shaped; if you knock out one leg of the stool, it may still appear to stand; but it becomes ricketier, less stable, and more prone to topple over when hit by something external... such as militant Islamism, to pull a random example out of my hat.
- While many people (especially the young) are eager to "change everything," a certain level of stability is vital to society, both culturally and legally. Our experience of societies that have a different set of axioms -- such as the Moslem and African cultures -- warns that treasured rights and privileges that we take for granted would not survive such ham-fisted tampering.
- So for God's sake, don't do it!
Here's what's so bad, wise guy...
The law of unintended consequences applies in full force here. For example, the easier we make it for any group of two or more people to be legally considered "married," the less special is the marital relationship; as it becomes less special, it attracts fewer people. Fewer marriages means fewer children, hence a waning, dying culture (cf. Northern Europe, esp. Scandinavia).
Fewer marriages also mean kids who are born are more likely to grow up in fatherless homes. Looking at America's black population, we see an extraordinary rate of out of wedlock births (69.3% of all births, compared to 31.7% of white babies - Table 14) and fatherless households (60%, compared to 22% for white children). If we compare that disparity to the disparity in violent-crime offender rates between blacks and whites (blacks were nearly three times times as likely, 2.8:1, to commit violent crime in 2005 as whites; Sourcebook of Criminal Justice Statistics, 2000 Census), we see a strong correlation between out of wedlock birth and fatherlessness on the one hand and the commission of violent crime on the other. This is hardly surprising; a strong and law-abiding male role model teaches boys how to resolve problems peacefully and legally.
That correlation should tell us that the very last thing we should be doing is discouraging heterosexuals of any race from getting married: Raising kids in an intact, married family makes them much less likely to become either violent criminals or the victims of violent criminals. But diminishing the "sacred specialness" of marriage by opening it up to any and all groups of people who declare "love" for each other does exactly that: If marriage means nothing, then why get married?
The West is the best
Our Western culture is unique in many ways: It's the strongest and most economically successful culture in human history; it's the freest and most respectful of individual rights; and it's also the most conservative culture on the planet, in the sense of conserving the virtues and mores of the classical liberalism of the nineteenth century -- derived from Enlightenment philosophers such as John Locke and first enshrined into law by the American Founding Fathers at the tail end of the eighteenth century.
Asian cultures (excepting Japan, which is completely Western) are mostly radical socialist cultures (Socialism includes both Marxist and fascist versions), still vainly trying to transform the world and create the New Socialist Man. And Moslem cultures are too often reactionary, trying to recreate the days of the Prophet -- more than thirteen centuries ago.
The Western culture converted to what we now call "traditional marriage" more than two thousand years ago; traditional African and ancestral American cultures never enforced "traditional marriage;" the socialist cultures of the East rejected spiritual unions (marriage) in favor of civil partnerships many decades ago; and traditional misogynist Islamic law still treats women like cattle.
Why on earth would any sane person want to monkey with the Western marriage model?
Jonah swallows the whale
Finally, I love this very appropos passage from Jonah Goldberg's new masterpiece, Liberal Fascism (pp. 133-4), which perfectly captures those radical activists trying to transform America into their own utopian vision:
Anybody who has ever met a student activist, a muckraking journalist, or a reformist politician will notice the important role that boredom and impatience play in the impulse to "remake the world." One can easily see how boredom -- sheer, unrelenting ennui with the status quo -- served as the oxygen for the fire of progressivism because tedium is the tinder for the flames of mischievousness. In much the same way that Romanticism laid many of the intellectual predicates for Naziism, the impatience and disaffection of progressives during the 1920s drove them to see the world as clay to be sculpted by human will. Sickened by what they saw as the spiritual languor of the age, members of the avant-garde convinced themselves that the status quo could be easily ripped down like an aging curtain and just as easily replaced with a vibrant new tapistry. This conviction often slid of its own logic into anarchism and radicalism, related worldviews which assumed that anything would be better than what we have now.
A deep aversion to boredom and a consequent, indiscriminate love for novelty among the intellectual classes translated into a routinized iconclasm and a thoroughgoing contempt for democracy, traditional morality, the masses, and the bourgeoisie, and a love for "action, action, action!" that still plagues the left today. (How much of the practiced radicalism of the contemporary left is driven by the childish pranksterism they call being subversive?)
Sadly, that is exactly what's going on here and now; and our enemies without and within call it "historically inevitable" that they will succeed. If so, fellow right-wingers, then it's our bounden duty, as William F. Buckley, jr. wrote in the National Review mission statement in 1955, to "stand athwart history, yelling Stop."
So to all those leftists who are screaming, arguing, threatening, cajoling, extorting, commanding, and suing to cram same-sex marriage down Californians' throats, and most particularly to the California Supreme Court...
Hatched by Dafydd on this day, May 15, 2008, at the time of 2:55 PM
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The following hissed in response by: hunter
The following hissed in response by: Rovin
The sad part Dafydd, is with this brilliant argument illistrating the will of the people, it will fall on the deaf ears of a California Supreme Court hell bent on writing new law while telling the electorate they have no voice.
The above hissed in response by: Rovin at March 5, 2008 6:28 AM
The following hissed in response by: MikeR
experience teaches that cultures that allow polygamy, such as traditional Moslem cultures, end up devaluing women and girls to the point where the papa will kill his own wife or daughter if he thinks (or imagines) she has shamed the family name.I liked the post, Dafydd; I'm just curious if you have more examples for this than the Moslem cultures. I wonder if it has to do with the Middle East: That place runs on honor, in a way that we Americans find hard to imagine.
The following hissed in response by: nash
experience teaches that cultures that allow polygamy, such as traditional Moslem cultures, end up devaluing women and girls to the point where the papa will kill his own wife or daughter if he thinks (or imagines) she has shamed the family name.
I am not in favor of polygamy, but I understand that itis still practiced by some Mormons in these United States. I have not seen any evidence that those Mormons devalue women in the same manner as some Moslem cultures. Perhaps it has more to do with other aspects of Moslem cultures than just polygamy itself?
The following hissed in response by: BigLeeH
I am not in favor of polygamy, but I understand that it is still practiced by some Mormons in these United States. I have not seen any evidence that those Mormons devalue women in the same manner as some Moslem cultures.The mainstream LDS church has not allowed polygamy for a long time now. The Mormon groups that advocate polygamy are splinter groups that have other practices of which neither the American public nor the Mormon church approve, often including ignoring the issue of "age of concent" in their polygamous marriages. They may not devalue women in the same manner as the Moslems but they have their own ways to do it.
Perhaps it has more to do with other aspects of Moslem cultures than just polygamy itself?Possibly, but there are real problems with polygamy that are inherent. The institution of marriage provides much of its benefit to society by civilizing males, for whom civilization is an acquired skill. When a marriage involves one man and many women then each male child has to share his male role-model with more siblings and most of his interactions with adults will be with women. Boys reared in this sort of an environment tend to get exaggerated notions of 'manliness' since they don't spend enough time around adult men to get the subtleties. Then when they leave home there is a fair chance, in a polygamous society, that they will wind up with no wife to keep them in line.
The following hissed in response by: Socratease
In California, even Supreme Court judges are subject to voter recall if they manage to tick off enough voters, as Rose Byrd and two other judges found out after the court had effectively nullified the state's laws on capital punishment. Given the support the traditional marriage referendum gained in the state, there's some hope the court will consider their own self interest if nothing else.
The following hissed in response by: MerryMaven
With respect to how polygamy treats women in different societies, doubtless the "shame and honor" issues they have in the Arab world have something to do with the general abuse of women. But consider what has come to be in certain fundie Mormon sects like the one in Colorado City, AZ: Girls are married to elders when they are very young, barely teenagers, and boys who the elders decide shouldn't breed are run off. If that's not treating women like breeding stock, I don't know what is.
An additional problem with polygamous marriages which I think is inevitable is the jealousy that will arise between the women, which will undoubtedly be carried to the next generation. There's no good way for that to end.
There's not getting around the fact that polygamy commodifies women: the more you can afford, the more you will have. Before you know it, having a big crowd of wives is just as much of a status symbol as having a young trophy wife.
Perhaps it's theoretically possible for polygamy to benefit women, with more moms around to care for the kids, but I don't see it working that way in the real world where competition will always rear its head.
The following hissed in response by: MTF
The New Jersey Supreme Court famously ordered the legislature to pass a law allowing gay civil unions or marriages, and the legislature meekly passed a law. That law is now heavily criticized by the social do-good set as not going far enough, and will probably be revised to allow full marriage just as soon as they can find a way to do it.
My issue with these events was two fold: 1) when does the revolution come? (so that we can tell these "judges" to stick it), and 2) who pays the financial impact of suddenly including a bunch of people in pension schemes (think social security death benefits) and health plans who were never considered in the original calculations (think bankruptcy for most pension plans, states, cities and the federal government).
The following hissed in response by: Dafydd ab Hugh
I thought to include a fascinating study from Africa on polygamous, non-Moslem cultures; but first I would have to track it down, and second, the post was too long as it was.
Anthropologists studied an African animist culture (I forget where) that allowed polygamous marriage. What they found was that extramarital sex was rampant, far more than in any Western country -- that is, sex with women who were not among the husband's wives. Even more interesting, extramarital sex was especially high in that culture among men who had only one wife!
Interviews indicated that men who had only one wife still thought they had the right to have lots of women, like their neighbors with several wives. So even if they couldn't afford multiple wives, they just had sex with other men's wives or with unmarried women.
In other words, it was another example where polygamy leads to the objectification and commodification of women.
Certainly, traditional Mormon culture back when polygamy was still allowed was significant in its patriarchal attitude towards women, even moreso than the rest of American culture (and indeed, they were a very violent, warlike, tribal group who did not consider themselves Americans).
Offhand, I have never heard of a polygamous group that did not objectify women and turn them more or less into a commodity.
Of course, some men and even some women may like that; but that is not the American, or even the Western way of thinking of half the human race, regardless of what radical feminists try to argue.
Older Western works abound with strong women treated as equals by the men around them, works from the eighteenth century (Tom Jones), to the sixteenth (Shakespeare), to the Matter of Britain, to ancient Greek and Roman poems and plays (the Odyssey, for example, where Penelope holds off the suitors, who are clearly portrayed as a vile lot for trying to force her into marriage).
And in real Western history, there have been many, many powerful queens and female generals from Queen Artemesia of Caria (an admiral in the navy of Xerxes of Persia); to Queen Mathilda and the Empress Mathilda (a.k.a. Maud), both of whom commanded armies in the civil war between the empress and the queen's husband, King Stephen, in the 1100s (most historical accounts I've seen indicate Queen Mathlida was a better general than her husband Stephen); to Elizabeth I of England, and on and on. Most non-Western cultures have no similar list of powerful ruling women, so far as I know.
The above hissed in response by: Dafydd ab Hugh at March 5, 2008 2:21 PM
The following hissed in response by: snochasr
It seems to me there is a simpler route to your desired rational conclusion:
1. There is no right to civil marriage. It is a privilege endowed by the state, for those who meet the qualifications, just like a fishing license.
2. Society, and thus government, has a vested interest in promoting stable two-parent families, and indeed it is essential to the society's survival, both for procreation and for transmission of the society's basic values.
You can "marry" anyone you want, in any way you want, except that you cannot claim the legal benefits bestowed by the state upon qualified couples.
The following hissed in response by: hunter
That argument is far too coherent and logical to be used today. In fact it would likely be used bny those wanting to inflict revision of marriage on society to do so.
The following hissed in response by: Ken Hahn
We do have two advantages in California. It is possible to recall Justices and if that fails they have to be approved by the votes periodically. I suggest any Californians tired of judicial legislation respectfully remind the Justices of these remedies.
The following hissed in response by: Bart Johnson
The State Supremes, nor even SCOTUS itself does
not have the authority to demand legislation.
They can declare a law unconstitutional, but they
cannot generate it.
If the Supremes demand legislation, the co-equal
Legislature is under no requirement to pass it.
If the Legislature passes it, the co-equal
Executive is not required to sign it,
nor to execute it.
Both the Legislature and the Executive can tell
the Supremes to go pound sand. Since this has
already happened, the Supremes should acknowledge
it under stare decisis.
The following hissed in response by: Steven Den Beste
I'm in the curious position of both agreeing with and disagreeing with our host. See, I happen to think that gay marriage should be legal. But I agree with our host that this is not how the decision should be made.
One time I got introduced to an interesting idea: the real reason for holding elections in a democracy is to convince the losers to accept that they lost, so that they will accept the results of the election without rising in revolution. Settling issues like this through the electoral process gives them their chance to campaign and to vote, as well as holding out the possibility that even though they lost this time they might win next time. If they're on the losing side of history, they'll keep trying, keep losing, and support for that position will wane over time.
Contentious decisions like this should not be made by judicial fiat. When that happens, those who disagree with the decision feel cheated -- and they are cheated. They didn't get their chance to participate in the decision, and they become sullen and resentful and refuse to give up. Controversial decisions imposed by the courts remain controversial for decades, as the abortion debate proves. By contrast, legal apartheid in the US was ended by the Civil Rights Act of 1964 and other legislation, and no one now except for a small number of crazies wants to bring apartheid back.
The question of gay marriage should be a political decision, and it should be handled by the legislatures of the states, not by state or federal courts. Dafydd makes a decent case against legalization, but a good case can also be made for legalization -- and both should be made, to the voters, so they can make a decision either directly or through their elected representatives.
No matter how the decision goes, it won't stick unless the voters are involved. That's the only way it can really be settled, in the long run.
Advocates of this kind of social change should be trying to make their case to the voters, rather than trying to disenfranchise the voters to get their agenda adopted through the back door.
[There's another problem with using the courts in this way: it poisons the judicial system. Major decisions imposed on the electorate by judicial fiat can be reversed later by judicial fiat. And that means "rights" created in this way are fragile. It means that when the Senate considers nominations for federal judgeships, then instead of asking, "Is this candidate wise, educated, fair minded, and even tempered?" they ask "How will this judge rule on abortion and gay marriage?" You don't necessarily get the best candidates approved when that's going on.]
The above hissed in response by: Steven Den Beste at March 6, 2008 7:32 PM
The following hissed in response by: Steven Den Beste
Bart, what you're saying should be true. But apparently it isn't, at least in New York. Didn't you read about how the NY supreme court ordered the legislature to drastically increase the budget for the schools there?
The above hissed in response by: Steven Den Beste at March 6, 2008 7:35 PM
The following hissed in response by: fit
Imagine four brothers: one heterosexual, one homosexual, one bi-sexual and one asexual.
Current marriage laws treat these brothers equally; each has the same privileges and restrictions upon him as the others (assuming they're all single).
If the government changes its law to accommodate the homosexual's desire, Should it deny the asexual brother permission to marry? In a court-appointed act of fairness, would it not also require permission for the bi-sexual brother to have two spouses?
The following hissed in response by: yonason
For "equal protection" to apply I would have thought the protected activity would have to be "equal" for all parties.
But gay "marriage" isn't. Only a man and woman can have a baby, homosexual "couples" can not, not now, not ever. Now if they want to rent an appartment together, get certain jobs (not involving them being role models for children!), or most other things where there is no essential difference between gay and straight, fine.
But in a situation where it will undermine the values upon which the nation is founded and in which most believe and upon which all law depends, twisting them beyond recognition, it truly is a "perversion".
The following hissed in response by: Geoman
Steven Den Beste has some important points, many of which I share. I don't care as much about same sex marriage as I care about the correct process for the decision to be made. Judicial fiat is the wrong, wrong, wrong, way to decide these things, and comes with a terrible burden.
There is one item not mentioned by anyone as far as I can see. If the law says: "A person may not be deprived of life, liberty, or property without due process of law or denied equal protection of the laws..."
How is a vote of the people to deny same sex marriage not "due process of law"?
Also, seriously, denying someone of a driver's license, which society does all the time, certainly has an imapct on life liberty and the pursuit of happiness than same sex marriage ever will.
The following hissed in response by: BarbaraS
I am curious. When did the left change their minds about marriage. I thought it was "just a piece of paper"? But I can answer that myself. They changed their minds when they realized that gay marriage would cheapen the whole foundation of marriage and therefore the foundation on which our society evolves.
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