Posted on 12/08/2003 7:12:17 PM PST by Kay Soze
How legalizing gay marriage undermines society's morals
By Alan Charles Raul
WASHINGTON - The promotion of gay marriage is not the most devastating aspect of the Massachusetts Supreme Judicial Court's recent decision. The more destructive impact of the decision for society is the court's insidious denial of morality itself as a rational basis for legislation.
This observation is not hyperbole or a mere rhetorical characterization of the Goodridge vs. Department of Public Health decision. The Massachusetts justices actually quoted two opinions of the US Supreme Court (the recent anti-anti-sodomy ruling in Lawrence vs. Texas and an older anti-antiabortion ruling, Planned Parenthood vs. Casey) to support the proposition that the legislature may not "mandate (a) moral code" for society at large. The courts, it would seem, have read a fundamental political choice into the Constitution that is not apparent from the face of the document itself - that is, that individual desires must necessarily trump community interests whenever important issues are at stake.
These judicial pronouncements, therefore, constitute an appalling abnegation of popular sovereignty. In a republican form of government, which the Constitution guarantees for the United States, elected officials are meant to set social policy for the country. They do so by embodying their view of America's moral choices in law. (This is a particularly crucial manner for propagating morality in our republic because the Constitution rightly forbids the establishment of religion, the other major social vehicle for advancing morality across society.) In reality, legislatures discharge their moral mandates all the time, and not just in controversial areas such as abortion, gay rights, pornography, and the like.
Animal rights, protection of endangered species, many zoning laws, and a great deal of environmental protection - especially wilderness conservation - are based on moral imperatives (as well as related aesthetic preferences). Though utilitarian arguments can be offered to salvage these kinds of laws, those arguments in truth amount to mere rationalizations. The fact is that a majority of society wants its elected representatives to preserve, protect, and promote these values independent of traditional cost-benefit, "what have you done for me lately" kind of analysis. Indeed, some of these choices can and do infringe individual liberty considerably: For example, protecting spotted owl habitat over jobs puts a lot of loggers out of work and their families in extremis. Likewise, zoning restrictions can deprive individuals of their ability to use their property and live their lives as they might otherwise prefer. Frequently, the socially constrained individuals will sue the state, claiming that such legal restrictions "take" property or deprive them of "liberty" in violation of the Fifth Amendment, or constitute arbitrary and capricious governmental action. And while such plaintiffs sometimes do - and should - prevail in advancing their individual interests over those of the broader community, no one contends that the government does not have the legitimate power to promote the general welfare as popularly defined (subject, of course, to the specific constitutional rights of individuals and due regard for the protection of discrete and insular minorities bereft of meaningful political influence).
Even the much maligned tax code is a congeries of collective moral preferences. Favoring home ownership over renting has, to be sure, certain utilitarian justifications. But the fact is that we collectively believe that the country benefits from the moral strength growing out of families owning and investing in their own homes. Likewise, the tax deduction for charitable contributions is fundamentally grounded in the social desire to support good deeds. Our society, moreover, puts its money (and lives) where its heart is: We have gone to war on more than one occasion because it was the morally correct thing to do.
So courts that deny morality as a rational basis for legislation are not only undermining the moral fabric of society, they run directly counter to actual legislative practice in innumerable important areas of society. We must recognize that what the Massachusetts court has done is not preserve liberty but merely substitute its own moral code for that of the people. This damage is not merely inflicted on government, trampling as it does the so-called "separation of powers." It does much worse, for when judges erode the power of the people's representatives to set society's moral compass, they likewise undercut the authority of parents, schools, and other community groups to set the standards they would like to see their children and fellow citizens live by. Indeed, it is a frontal assault on community values writ large.
It is thus no wonder that many feel our culture's values are going to hell in a handbasket. Yet, neither the federal nor Massachusetts constitutions truly compel such a pernicious outcome. Indeed, to this day the Massachusetts Constitution precisely recognizes that "instructions in piety, religion and morality promote the happiness and prosperity of a people and the security of a republican government." It cannot be stated better than George Washington did in his first inaugural address: "The foundation of our national policy will be laid in the pure and immutable principles of private morality, and the pre-eminence of free government be exemplified by all the attributes which can win the affections of its citizens and command the respect of the world."
• Alan Charles Raul is a lawyer in Washington. This commentary originally appeared in The Washington Post. ©2003 The Washington Post.
Say it, brother!
The traditional institution of marriage is one man and one woman. The states' current definition of marriage is one man and one woman. The states support traditional marriage to protect the many children that result from sexual coupling. Why should that change?
How narrow-minded!
Two of the most intelligent Freepers I've ever read here on this very thread!
Do you deny the health hazards of the homosexual lifestyle?Well?
Smoking and eating fatty foods kills a lot more people every year than being gay does.
But I'm sure you're not as hysterical about those unhealthy lifestyles
Why the obsession with homosexuality?
I explained why you are extreme and unamerican. You didn't answer that.
You introduced a new question and did not answer the earlier questions posited to you.
This is a pattern with you and I won't engage in your avoidance and spin games. You don't establish the upper hand by accusing someone of doing what your doing. Capiche?
Whose "tradition" are you referring to?
I don't see how the second follows from the first. The types of families marriage supports are one man, one woman, and children.
Many homosexuals do have children.(as do many unmarried heterosexuals.)
Let me get this straight. The reason the state should extend the protection of marriage to homosexuals is to increase the ratio of nontraditional family structures as compared to traditional family structures?
Number one, that is not moving in a productive direction. Number two, we are discussing only why centuries-old tradition and law should be changed. I need an extremely good reason.
In my experience discussing this issue, anyone who rabidly opposes gay marriage virtually always does so for two reasons 1) unthinking prejudice (I hate homos ) and 2) traditional religious teaching( God hates homos)
Any purported public policy rationales are just a pretext for (1) or (2) or most often (1) and (2)
Actually, I am uninterested in your anecdotal characterizations of who argues what.
Whose "tradition" are you referring to? -WackyKat
Oh, just the cultures dominant in Western nations and Eastern nations. No other ones.
No connection with Israel, except there used to be boatloads of posts that out of the closet gays in the military would cause the institution to go down the drain more or less.
The attenuated connection with Israel however is that perhaps folks just have a certain animus and angst about gays qua gays, that colors their thinking and objectivity. And that is their right. We all have our own aesthetic and moral "prejudices." The trick is to try to keep them house broken, and sufficiently leashed, that they don't become unmanageable, more for one's inner serenity, than anyone else, but also to keep the public square reasonably rational and able to cope with divergent prejudices and aesthetic preferences without excreting an undue amount of toxicity.
Are there any organizations similar to GLSEN in our schools telling kids it's okay to eat fatty foods, get fat, or to try smoking? I mean, how do kids know they wouldn't like being obese or having lung cancer if they've never tried it?
Does eating fatty foods and smoking taint the blood supply with a deadly and contagious virus?
Can you name any television shows that encourage eating fatty foods or smoking?
As I see it, a Compassionate Society Should Discourage Deadly Homosexual Behavior.
Why don't you discourage a behavior that results in a deadly and contagious disease?
That is what you think should be the case,not historical reality. Polygamy is extremely common in human societies, and de facto polygamy has existed since the beginning of western civilization. That you think the modern "nuclear family" model is the "traditional" family just shows how little you know about how people lived in the past.The modern Western family is the exception to the rule, not the rule.
What I don't understand is, if two gay people want to get married, why does that offend you so much? How is it any skin off your nose?
Yes. They're called "corporations" They use something called "advertising" and "marketing" which is far more pervasive in our society that homosexual propaganda.
All of which is fine with me; I think people shouold be able to make their own decisions on how they should live. That applies to eating , drinking , smoking and having sex.
For some reason you seem to focus only on sex
As I linked above, even homosexuals are admitting it now. So why don't you discourage this behavior that results in a deadly contagious disease?
The fact that they were "married" by their minister is irrelevant to the current discussion.
Artificial insemination is not illegal, nor should it be. Unless pressed, I would not express any disapproval to those two folks for their choice to have a child, and I wish them the best.
My sense of social good leads me to believe it is not wrong for society to express disapproval for these arrangements. Of course we should not reject the children! But it is not wrong to express a generally higher appreciation for men and women to be the ones having children, and then in the context of nuclear families.
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