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.
Is this some new thing with you?
I would hope that if they are thinking conservatives they would not say this. If God exists, then our rights are granted by Him. If He does not, then man has to make them up for himself and decide to enforce them. Without a transcendent authority God there is no such thing as an unalienable right. But either way, they do not "simply exist".
Changing the subject, but I see the connection. There can be a bitterly fought conflict between lawmakers and judges. Sure, the judiciary can be a check against majoritarian rule through appropriate judicial review of Constitutions. However, the miscegenation result in no way prejudices the present matter. On the present matter, the SJC are dead wrong, preposterously wrong.
Things change.
Things change via the rule of law. Is there any imaginable fair reading of the Massachusetts Constitution that leads inexorably to the Goodridge decision? Of course not.
Government is limited. Concretion is the friend of limited government. Marriage is defined as the union of one man and one woman. Judges must not be allowed to dispense with commonsense understanding, turning concrete into abstract, whenever they favor an antihierarchical result. That is a prescription for unlimited government, the rule by judges.
I've got the data and the studies to back up my chain of reasoning. look at scripters database
I do not accept your pronouncements and I refuse to engage them. Take that as you will.
You have the right to remain in ignorance and denial if you wish but the factual evidence to support my claims is easily located in scripter's database. When your mind opens enough to look at it you can find the database here:
Homosexual Agenda: Categorical Index of Links (Revision 1.1)
check under the categories: Genetics, Mental Health, Homosexual help, and comprehensive for applicable articles
The truth remains that 'homosexuality' is a curable disease caused by trauma.
Has this study been disproven? if so I'd love to see the report on it. I know of no evidence disproving their conclusions. So far as we can tell the pattern of 73% of 'homosexual' men having sex (or having had sex) with boys stands true.
Agreed. Mostly because the concept of 'homosexual' as a distinguishing characteristic like race is bogus. 'Homosexuality' is a pattern of behavior (which BTW is indulged in only by the mentally ill)
neither States, or the Federal government have the Constitutional power to restrict two able-bodied, consenting adult citizens, from entering into the civil contract known as marriage,
Why did you leave out able minded? are the mentally incompetant able to marry? (you never addressed this from above)
The Federal Government has the power and the Authority under the Constitution to promote the general welfare of the United States. (falls under Article 1, section 8, paragraphs 1 and 18, and Article II Section 3) Any activity that is proven to damage the general welfare can rightly be controlled or banned outright. 'Homosexual' activity is a serious health hazard, physically, mentally and socially. It is a contagious disease that must be controlled as strictly as we once controlled TB or leprosy
performed by government licensed magistrates, because in order to justify the refusal to license the union, either the State, or the Feds must fall back on a reason wholly based on religious beliefs as every other "societal" argument fails miserably to hold up to the light of day.
The fact that homosexual behavior is deadly holds up pretty strongly to the light of day. The evidence has been gathered and paints quite a damning picture of this disease. See scripter's database. (referenced in my last post for your convenience)
The additional fact that this disease does not promote the general welfare and that marriage between one man and one woman does is also well proven.
There is another option. The Massachusetts legislature could tell the court that it is full of it and either ignore their decree, creating a crisis, or impeaching those who are not doing their duty.
No, I am not holding my breath.
Shalom.
Bullsh%t...
"Why did you leave out able minded? are the mentally incompetent able to marry?"
I also left out blue-eyed, right-handed, red-haired...there are few if any laws restricting the mentally "challenged" from marrying. If you know of any, post them.
"Any activity that is proven to damage the general welfare can rightly be controlled or banned outright."
Now, all you have to do is convince anyone that same-sex marriage can cause damage to the "general welfare"...none of your arguments will hold up, but if you wish to go through the exercise, feel free to do so. If you are going to argue that same sex marriage will somehow "harm" the institution of marriage, and consequently negatively impact society, I'll simply respond that heterosexuals have done more to hurt marriage thus far (and I have the statistics to prove that), than people who simply want the right to marry the person of their choice.
"The fact that homosexual behavior is deadly holds up pretty strongly to the light of day."
Irresponsible sexual promiscuity is dangerous for everyone, marriage being an agreement between two people to be exclusive to one another sexually, is the logical solution to the deadly side effects of that promiscuity.
This "promote the general welfare" argument of yours is as big a pantload as anything I've ever read in here.
Homosexuality is not something that "popped up" a few years ago, and it's not going away, so it's not something that's dangerous to that "general welfare" you are so concerned with. Heterosexuals set in motion the "sexual revolution"; we swing, free-love, divorce by the tens of millions, spouse swap, cybercheat until we get the guts up to "really" cheat, fornicate, and give birth to nearly as many illegitimate babies as we kill in the name of "choice" yearly...and please, don't insult my intelligence and blame all those actions on "liberals" alone.
And you don't seem to concerned with all those actions as a danger to that "general welfare" you are so concerned with, and spend your energy trying to convince others that people who have never been allowed to marry at all, will be more responsible for marriage being destroyed, than those who truly DID destroy it!
That is simply amazingly, and monumentally hypocritical of you.
If you're truly so concerned about the general welfare of this society, why don't you spend your time trying to stop heterosexuals from destroying marriage, and killing one million fetuses a year to hide their irresponsible sexual behavior?
You want deadly consequences to irresponsible sexual behavior?
Try that on for size.
And the court was in error. The legislature should assume its responsibility and impeach those who do not know how to properly interpret the law.
Demanding a license for homosexuals to marry is like demanding a license to drive a fish.
Shalom.
That's not what you are arguing in favor of however.
You want government to have the ability to pass judgement of the matrimonial wishes of a segment of the citizenry.
Limited government would not micro-manage this issue.
This is true. So is homosexual behavior.
If you find a dead man, you will know immediately whether he was white or black. You will not know whether he was gay or straight, or whether he was Christian or atheist.
Based on this simple analysis, people do not gain civil rights based on their sexual preferences.
Shalom.
"Interpreting" is in the eyes of the beholder. That yo don't see eye to eye on the Court on this issue does not mean that it's they who are not properly interpreting the law.
Is that so?
Tell me, do you remember the exact moment you chose to be a heterosexual?
If homosexuality of a "choice" and not a trait, then it stands to reason that all of us had to make that choice at one point or another in life, and decide whether we are attracted to persons of the same sex, or of the opposite sex.
At what age did you make that choice?
Gays are not trying to "gain" civil rights, they are trying to stop others from violating them.
You on the other hand, are arguing in favor of limiting civil rights based on that very same sexual orientation that you claim not to believe in!
NOW THAT we've arrived at the wedding, can we take a minute to describe how the laws walked us down this aisle? After all, the laws emerged from two different backgrounds and went down two separate paths. Then they came together before the justice of the peace, as groom and groom, bride and bride.
On Tuesday, the Massachusetts high court ruled that gay couples have the right to marry. In the same decision, the justices redefined both gay rights and marriage. And yet for all the hoorays and all the boos, the decision may be as evolutionary as it is historic.
Consider first the path of gay rights. For generations, the state labeled some lovers as criminals. When the last laws against sodomy finally fell this year, Supreme Court Justice Antonin Scalia dissented. He argued that if moral disapproval wasn't enough to make sodomy illegal, nothing was: "What justification could there possible be for denying the benefits of marriage to homosexual couples?"
He was bitter -- and right. The statutes that made homosexuals outlaws had to end before they could become in-laws.
Meanwhile, marriage was on its own winding path. Historically, a woman who entered the institution lost her legal identity at the altar. Until 20 years ago a husband was still exempt from rape charges in New York because a wife didn't have the right to say no.
In 1965, the state lost the power to control sex within marriage when the Supreme Court overturned a Connecticut ban on selling contraceptives to couples. In 1967, the state lost its power to define the race of the person you could marry when the court overruled the last laws banning interracial marriage. And gradually throughout the 1970s, the state turned over the right to decide why a marriage could end. A wave of no-fault divorce laws gave that decision to the people.
Each one of these changes -- ending the subordination of wives, ending race restrictions, decoupling marriage from decisions about children, sex, and divorce -- set off alarm bells. Marriage today is less about an institution and more about a relationship, less about the state, more about individuals.
The evolution of gay rights and marriage laws now merge into the definition of marriage written by the Massachusetts court: "We construe civil marriage to mean the voluntary union of two persons as spouses, to the exclusion of all others."
In an elegant decision, Chief Justice Margaret Marshall, who grew up fighting apartheid in her native South Africa, echoed the reasoning that permitted interracial marriages: "The right to marry means little if it does not include the right to marry the person of one's choice." Marshall wrote that "civil marriage anchors an ordered society by encouraging stable relationships over transient ones." But what's sexual orientation got to do with it? The decision carefully lists the reasons to ban gay marriage and finds them unreasonable.
Fertility? Why, the state allows people who aren't fertile, indeed people on their deathbeds, to marry. For the raising of children? Why, if anything, marriage would help gay couples with children, like many plaintiffs in this case. By the end, the only reason left to ban gay marriage was moral disapproval -- or what's also known as prejudice. But the Massachusetts Constitution, ruled the court, "forbids the creation of second-class citizens."
This case doesn't end the argument any more than the decisions about interracial marriage or a wife's place ended those debates. The state Legislature has 180 days but not much wiggle room to get its marriage laws in line. There is talk already of a state constitutional amendment. And if couples marry in Massachusetts and seek recognition elsewhere, the issue could go to the Supreme Court.
Gay marriage may indeed end up at the center of the culture war in the 2004 campaign. Or it may simply mark the moment in a long social change.
It's been a lengthy trip down the aisle. But a friend who applauded this decision added: "I don't think I would have said that five years ago." In the past year, Bride's magazine featured two brides. The love that "dared not speak its name" now announces it in the newspaper. If this is a wedge issue, it seems to mostly divide generations.
"The plaintiffs seek only to be married, not to undermine the institution of civil marriage," writes Justice Marshall. Marriage vows are not diminished but enlarged in a redefinition that seems both new and familiar: "Civil marriage is at once a deeply personal commitment to another human being and a highly public celebration of ideals of mutuality, companionship, intimacy, fidelity, and family."
In the end, this case may say less about the fragility of marriage than about its endurance.
True, but that's what legislators are for.
You saying that I am not correct does not make me correct. We should debate such issues, not waste time with platitutes.
Homosexual behavior is not normal. To put it more "clinically" it is not well adapted to either the individual's physiology nor to any culture of which I am aware.
There is not now, nor has there ever been any rational legal reson to force the culture to adapt to personal maladaptations. Homosexuality can be treated. Those who don't like accepting the fact that their sexual preferences are not mainstream should adapt to the mainstream. Those who wish to stick with their sexual prefences should accept the consequences.
Shalom.
At the same age when I made the choice to eat with my hands instead of my feet.
But you confuse the issue. I called homosexual activity a behavior, not a choice. Your attempt to confuse the issue doesn't change the truth. If you find a dead man, you can not tell if he was straight or gay. That makes homosexuality a behavior.
Shalom.
They are trying to create a right to marry. You and I were discussing that, remember?
Do you normally have this kind of trouble remembering the thread of a conversation? The good news is that on FR you can go back and review.
Gays have all the right they want to engage in whatever sexual perversion they want to in the privacy of their own home.
I have the right to refuse to associate with them on the basis of that behavior. I also have the right to refuse to call their perversion normal. They have no more "right" to be gay than I have a "right" to be a "homophobe". Also no less.
Shalom.
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