Big Lizards:Blog:Entry “Marriage - a Fundamental Liberty?”

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October 26, 2008

Marriage - a Fundamental Liberty?

Hatched by Dafydd

In short, no, it isn't... and I don't care what the Supreme Court (U.S. or California) says: Any claim that marriage is a fundamental right or liberty contradicts itself. For the most obvious examples, if it were a fundamental right, then how could it be illegal for a brother to wed his sister? Shouldn't "strict scrutiny" apply to laws against consanguineous marriage, polygamy, polyandry, and even marriage with minors? After all, even kids have freedom of speech under some circumstances. Yet no court has ever even hinted at any such ruling. Any court that has ruled marriage a fundamental liberty is confused, contradictory, biased, bewitched, bothered, and bewildered.

But what about judicial rulings striking down laws against miscegenation? Isn't that just the same as striking down laws banning same-sex marriage? After all, isn't sexual preference beyond individual control, just as race is?

First, we don't know that that is true; but leave that aside. The more important point is that the courts were not acting in a vacuum in the racial case... there was already a long history of anti-racial-discrimination law enacted by the people, which the courts finally decided (in the mid-twentieth century) to enforce. "We the people" held that racial color-blindness was a civil right and liberty, and we signaled this decision by enacting the Civil Rights constitutional amendments (the Thirteenth, Fourteenth, and Fifteenth Amendments to the United States Constitution).

If properly enacted, using the accepted procedure, either a California or a federal constitutional amendment or statute stating that same-sex and opposite-sex relationships (not just people) must be treated the same, then I would think it reasonable that courts begin enforcing such constitutional rights; but we haven't, so they shouldn't.

So if the analogy of same-sex marriage to interracial marriage is improper and invalid -- as it clearly is, in the absence of any corresponding constitutional amendment -- then what is the proper analogy? After long thought, I think I finally have the answer: There is none.

No, seriously. I talked it over with Friend Lee, and we jointly concluded that marriage is sui generis; there is no proper analogy between marriage and any other human institution or activity, nothing we can point to as a model for understanding what would happen to marriage if you monkey with it.

But it is also sine qua non for Western civilization... at least so far as we know. For those very two reasons, it deserves to be let alone.

Let's go a bit deeper and think about this. Religious marriage is clearly a fundamental liberty protected by the First Amendment; nobody should be able to tell you to whom or how many you should be married... in the eyes of your faith. If you worship Ra, and you want to consider yourself religiously married to your sibling, who are we to tell you No?

But civil marriage -- legal marriage -- is a creation of the State, for the purpose of advancing civilized society. Legal marriage is State-sponsored discrimination in favor of a particular kind of relationship, that which most benefits our civil and religious Western society. It's the State sanctioning, rewarding, and cheering one specific type of relationship, which we have believed for more than two thousand years is a bulwark of our civilization: opposite-sex monagamy with a person over the age of consent and not too closely blood-related.

The essence of discrimination is exclusivity: If we are to discriminate in favor of a particular relationship, other relationships must be excluded from the rewards offered for the privileged relationship. If we don't, if everyone is equally special, then as Dash says in The Incredibles, that's the same as saying that no one is special. (This is a "duh" moment.)

There are only two questions that need answers anent civil marriage:

Who within the society has the authority to decide the rules that define that exclusivity? Who gets to decide what is right and what is wrong?

What relationships should that person or class of persons decide is right? Which relationship should get privileged, while all others are deprivileged?

Answer these, and you have defined a huge chunk of your civilization.

As to question number one, it was already answered 232 years ago by better men than I. See if this sounds familiar:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. -- That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, -- That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

Thomas Jefferson and his co-conspirators saw as "self-evident" that the only class within society that has the authority to decide the rules that define the most fundamental unit of society -- the family -- is the class of "the governed," that is, the people. It is the most basic, most fundamental right of all. (Governments that rule against the consent of the governed have a special name; we call them tyrannies.)

The people can express their will in two ways: By direct vote, as with California's Proposition 22 back in 2000 or Proposition 8 this year; or by vote of their elected officials.

But not by judicial decree. The judiciary's job is to decide individual cases and occasionally to pass judgment on whether laws comport with the state and federal constitutions... not to make fundamental, deep, and long-lasting changes to society to fit the whims of the "enlightened" and "progressive" judges themselves... the anointed who have "the vision," as Thomas Sowell puts it.

As to the second question, I have made my arguments; just search on this topic, Matrimonial Madness, for a long list. I believe that "opposite-sex monagamy with a person over the age of consent and not too closely blood-related" is still the best relationship for Western civilization, even after thousands of years for us to think about it collectively.

But the only proper issue anent Proposition 8 is the first question. Judicial conservatives believe the people, the "governed," should decide what constitutes marriage; judicial activists think anointed judges should make the call, as they are more enlightened and progressive than the lumpenproletariat voter who lacks even class consciousness. That is the great divide.

Judicial conservatives, of which I am one (despite differences with other judicial conservatives over whether "liberty" interests include the right to sleep with whom one chooses), believe that the people have the authority to choose to extend marriage rights (and rites) to same-sex couples... but they are not compelled to do so, merely because has-been singer Barbra Streisand, San Francisco Mayor Gavin Newsom, and California Chief Justice Ronald George demand it.

If the people want to change the rules of marriage to "anything goes," they can jolly well do so under the normal procedures... which in California means proposing, qualifying, passing, and then enacting a citizens' initiative to overturn Proposition 22. Prop 22 passed overwhelmingly (61-39) in 2000; it reads, "Only marriage between a man and a woman is valid or recognized in California."

Judicial activists on the California Supreme Court had a different opinion, however; led by Chief Justice George, they simply declared Proposition 22 null and void, waving away the will of the people (and the consent of the governed) as irrelevant and immaterial, like Hamilton Burger objecting to Perry Mason introducing direct evidence of his client's innocence.

Now we have Proposition 8 to vote upon a week from Tuesday. By a strange twist of fate, Proposition 8 reads: "Only marriage between a man and a woman is valid or recognized in California." If it passes, then the only option available to judicial activists will be -- to declare the California constitution unconstitutional under the California constitution -- a circumlocution that would be unprecedented and breathtaking in its absurdity.

If it fails, then we may as well conclude that the people have consented to same-sex marriage. I will think it a wretched decision; but the people have the right to make wretched mistakes.

I will accept the decision of the voters. Will the Left? Somehow, I doubt they will extend us that courtesy... and if they did, it would be unique in the annals of their own history. If Proposition 8 passes -- it currently leads in the polls -- then look for a jaw-dropping series of legal maneuvers to once again silence the tongues of the people, in preference to the vision of the anointed.

Hatched by Dafydd on this day, October 26, 2008, at the time of 11:33 PM

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Comments

The following hissed in response by: snochasr

Your fundamental argument is absolutely and simply correct. Being against gay marriage is not discriminating against gays, nor is it telling you "who[m] you can love" or even "who[m] you can marry." It is about who the State (i.e. The People) decide should receive the BENEFITS that the government and society chooses, IN ITS OWN BEST INTERESTS, to bestow on certain relationships. Society has a vested interest in creating stable, two-parent households as a matter of preserving itself, and may choose to incentivize only those relationships with legal, tax and other benefits.

I disagree only on the small point that there is no proper analog to marriage. I contend that a civil marriage license, bestowing the "permission" (not a right) to a civil marriage, is similar to a fishing license. The government sets out standards for who may obtain one-- age, residency-- and confers a government benefit (the right to take government-provided fish from government waters). The restriction is justified because the state has a vested interest in conserving the resource and the recreational activities surrounding that resource. You can still fish without a license, in any private pond for which you can obtain permission; you just can't access the government benefits. You do not have a "right" to fish.

The above hissed in response by: snochasr at October 27, 2008 6:39 AM

The following hissed in response by: wtanksleyjr

Good post, well argued; I agree.

On a slightly different topic, has anyone seen the Obama web ads regarding California's Proposition 8? They say that Prop 8 is "divisive and discriminatory", and recommends a "no" vote. Anyone remember Obama's answer in the first (I think it was the first) debate? He said that he was for civil unions but against same-sex marriage.

Even given Obama's belief that the states should decide, these ads seem to contradict his debate position.

Ah, here's an article on the subject.

-Wm

The above hissed in response by: wtanksleyjr at October 27, 2008 8:52 AM

The following hissed in response by: David M

The Thunder Run has linked to this post in the - Web Reconnaissance for 10/27/2008 A short recon of what’s out there that might draw your attention, updated throughout the day...so check back often.

The above hissed in response by: David M at October 27, 2008 10:03 AM

The following hissed in response by: Karl

A related post is this one at my Townhall.com blog, Penta-Grams. (It also shows up at Men's News Daily.)

It might be worth while to indulge in an activity that is popular among science-fiction writers and ponder what might happen if we were to rebuild human society from the ground up -- say, starting with a bunch of infants, raised by robot nannies on another planet, completely insulated from everything every human culture had done before.

Would we build an institution like "marriage" into our new society? Why? What purpose would it be intended to serve?

We'll assume access to technology at least as good as what we have today, so paternity issues are not a concern. Gene typing will establish paternity, and also identify matings which are genetically risky, regardless of consanguinity.

As far as inheritance goes, do we have to tie people's lives together in a marriage in order to handle the distribution of property after a death? Why not simply require that everyone who cares about where his property goes write a will?

Raising children is one function of a family, but could this be handled in other ways by contract law? Perhaps a mother is considered to have entered into an 18-year contract for support, unless other arrangements are made, but these other arrangements could be quite flexible.

In this post, I compare the institution of marriage with "ultraconserved" regions in our DNA. These regions don't change much over time, a trait usually associated with DNA that controls an important function in the genome. But mice with that section of their DNA knocked out show no ill effects. Presumably, whatever that DNA does is something that doesn't make a difference in the short run, but over tens of thousands of years, it matters enough to make it worth keeping around.

Maybe marriage, as an institution, composed about the way it is now, has been conserved and should continue to be conserved, not because of any effects within a year of changing it, but because of what will happen within a thousand years.

Maybe, in the long run, it matters. Maybe it doesn't. But do we know enough to say for sure?

The above hissed in response by: Karl at October 27, 2008 11:48 AM

The following hissed in response by: MNotaro

Bottom line is that Obama and his left wing illuminati friends want each state to be able to decide regarding same sex marriage, even though he doesn't believe in same sex marriage....does anyone else think this sounds like he is trying to make everyone happy? DUH!

The above hissed in response by: MNotaro at October 28, 2008 11:09 AM

The following hissed in response by: Xpressions

Obama won't say anything, because he wants to play it safe. You can't play it safe in this business, you must take a stand. Will he take a stand with the rest of the liberal illuminati on the wars and terrorism, or be neutral with us and his friend Ayers?

The above hissed in response by: Xpressions at October 29, 2008 1:09 PM