How legalizing gay marriage undermines society's morals

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."

I don't agree with anyone every time on any issue, conversely, I don't disagree with anyone on every issue every time.

Do you?

In a word, yes. There are some columnists I seem to agree with every time, and others I disagree with every time. Maybe my critical thinking is not where it should be.

Like I said, I didn't really mean anything by posting a second Ellen Goodman. But the one you posted I thought was pure poison.

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." -Ellen Goodman.

Ellen, it is not the job of four people with robes to write the definition of marriage. What the heck qualifies these judges for that task? The definition was already unambiguously written into the law, to interpret which is their primary task.

EG's column uses the same sophistry as Marshall's majority opinion. She accepts and promotes the Marxist claptrap that it is the redistribution of wealth that gives individuals their choices. Since any moral disapproval by We the People is repudiated as mere prejudice, law must now be drained of our judgments, so that coercion of virtue becomes the province of judges.

Her column claims to trace two paths, gay rights, and the definition of marriage. She tries to paint them as converging. But she gives short shrift to gay rights, citing only the sodomy law decision. If the only problem for gays were those silly laws that were virtually never enforced, it sure doesn't look much like the struggle that African-Americans had to endure to get civil rights.

No, but the implication is that the inability to get marriage benefits is equated with Jim Crow.

But she uses the most intellectual dishonesty on the other path: describing an illusory "evolution" of civil marriage. In fact, civil marriage has not changed in definition, purpose, or in its main legal structures. She listed only decriminalizations of certain behaviors and changes in divorce law, as if these refinements were redefining what marriage is all about.

To peddle the lie that marriage is rightfully about the satisfaction of adults and not the begetting and raising of children in stable families embraces the rot which is slowly destroying Western Europe. I refer to the triumph of secular humanism and the concomitant marginalization of the Judeo-Christian tradition. Pure poison.

Well, the problems of Europe are about low birth rates primarily (actually putting that aside, Western Europe is by and large one of the most agreeable places to live on this planet), and the lowest birth rates are not in places where "secular humanism" (and certainly not gay marriages) has raised its ugly head in your parlance. The lowest birth rates are in Slavic countries by and large. Your cause and effect analysis really lacks much empirical traction. The suggestion that gay marriage will end civilization as we know it is just that - a suggestion.

The Copurt's finding does not change in any way the definition of marriage, it expands it.

You seem to be stuck in place by your inability to separate the definition of marriage from the governmental restrictions on licensing.

Marriage means the same in Massachuttes today, than it did before the Court's ruling; the State was found to be in violation of their own Constitution when they refuse to issue some couples marriage licenses based on a State-sponsored dissapproval of their choice of partner via the gender make up of the couple in question, thus creating a second-class citizen.

"To peddle the lie that marriage is rightfully about the satisfaction of adults and not the begetting and raising of children in stable families embraces the rot which is slowly destroying Western Europe."

No one required me to sign a contract forcing my wife and I to have children prior to being issued a marriage license, and stability is exactly what the likely end-result of same-sex couples marrying will bring about.

"But she uses the most intellectual dishonesty on the other path: describing an illusory "evolution" of civil marriage. In fact, civil marriage has not changed in definition, purpose, or in its main legal structures."

You want claptrap?

There's pure, unadulterated claptrap.

We have seen marriage go from a time when a woman was not allowed to charge a husband with rape because marriage took away her rights as an individual to say "no", where couples could not buy birth control, where blacks and whites could not marry, and right into no-fault divorce.

If those things did not change the definition of marriage, neither did this.

Luis, I think when folks speak about marriage and the laws pertaining to it, in the public square, they mean marriage licenses, to which attend a package of rights and duties. They do not mean "marriage" in a spiritual or religious sense. So to suggest otherwise, is to deflect the debate a bit.

One interesting think about the Mass situation, is whether the law will trigger social security survivor benefits for gay marrieds, and whether if it is called "civil unions," and the Mass Supremes allow that, it will not. There is quite a bit of state money potentially riding on, well, terminology.

The suggestion that gay marriage will end civilization as we know it is just that - a suggestion.

And I absolutely did not suggest that.

In my last paragraph I did make some unsubstantiated and really unexplained claims. The intent of my post was to critique the Ellen Goodman column.

The fruits of secular humanism in Western Europe are: the low birth rate you mentioned; also declining militaries; also increased dependence on socialistic government; also a burgeoning hostile Islamic population. The deaths of those old folks in France were a signpost. It is no longer the family's job to take care of the elderly and infirm; that instead falls to the government.

Chapter 3, Article V.

All causes of marriage, divorce, and alimony, and all appeals from the judges of probate shall be heard and determined by the governor and council, until the legislature shall, by law, make other provision.

This is what the Massachusetts Constitution says Luis. But to judicial activists, the words contained in constitutions are meaningless as witnessed by the majority opinion in McConnell V FEC.

My side appears to be kicking butt via usurpative and reckless judicial self indulgence regarding promulgating their own aesthetic and moral preferences. I don't like it any more than you do. I want to win in the public square. I want my win to not be tainted. I guess I want a lot.

The upside I guess is that I will get to see the dire predictions of the downside of it all, refuted in my lifetime. And when we are both collecting social security, I can say, see I told you so John.

And we can chat about whether the two remaining justices on the otherwise vacant SCOTUS bench (Thomas and Breyer), will deadlock yet again.

And there you have it. :)

In my world, if I welcome Judicial activism when it suits my agenda, then I am required to equally welcome it when it doesn't, because to do otherwise, in mine or anyone's world, would amount to nothing less than monumental hypocrisy

After catching up on this thread I can see that my previous post to you has no meaning.

I would point out to you Luis that judicial activism moved us from the right to privacy to murdering babies who are almost totally outside the womb and ready and able to breathe on their own.

The problem with judicial activism Luis is that the law is what 5 people say it is in direct contravention to what this nation should and did stand for.

Supporting judicial activism and supporting the rule of law are incompatible notions as witnessed by thirty years of sliding down the slope from "first trimester" abortion to killing them on the way out.

Rights are self evident, for example the right to life, the right to property and the right to travel as one sees fit in this nation.

Questions of liberty can get a little bit stickier. While one has the right to certain behaviors in the privacy of ones home, engaging in the same behavior in the public park is not a right, it's a question of liberty that is best decided by all those who pay for the park. At the same time the same persons have the right to life, property and travel whether or not they are in a public park.

Ya, but I saw the downside legacy of Roe v Wade the moment it was decided, and when Casey came down, knew that the winds would never blow that noisome fart out of the public square. You see, I don't see abortion (particularly third trimester) as equaling gay marriage as equaling polygamous marriage, all wrapped up in one Pandora's box. I don't see killing a semi sentient fetus for convenience as quite the same as what two consensual adults want as far as sealing their rights and duties to each other. And I suspect you don't either. You put them in varying rings of Dante's hell, and I put one outside the ring. Of course, from a jurisprudential standpoint, all are in the innermost ring to the extent SCOTUS chooses to go there.

The Court's finding does not change in any way the definition of marriage, it expands it.

Your statement is flat false.

Did you read the exact words of Ellen Goodman's column? She said the SJC wrote the definition of marriage.. In the Massachusetts Constitution it is defined as a union of a man and a woman.

The State was found to be in violation of their own Constitution when they refuse to issue some couples marriage licenses based on a State-sponsored dissapproval of their choice of partner via the gender make up of the couple in question, thus creating a second-class citizen.

Your statement is correct.

However, the dissents seem to be much more convincing than the majority opinion.

No one required me to sign a contract forcing my wife and I to have children prior to being issued a marriage license.

Right, but here I am talking about what marriage is all about in the general sense. Can you honestly ponder life in Western Civilization over generations and not see the purpose of marriage as being about children and families and generations?,If not, I do not know what planet you are living on.

Stability is exactly what the likely end-result of same-sex couples marrying will bring about.

I am in favor of better stability for same-sex couples. That stability, if it does come about, will be good for the people among us who are gay. A little tweaking of existing civil contract law may do the trick.

Looked at that way, the issues of gay couples do not seem to have much impact on stability of the American family. It is only when these issues impact marriage law that I get concerned.

You see, I don't see abortion (particularly third trimester) as equaling gay marriage as equaling polygamous marriage, all wrapped up in one Pandora's box. I don't see killing a semi sentient fetus for convenience as quite the same as what two consensual adults want as far as sealing their rights and duties to each other.

Neither do I.

But I can look at history and from what I have learned on my own and with yours and others help here at FR, it is plain to me that the natural progression of SCOTUS precedents is the liberalization of those precedents.

Roe took us to PBA in the last trimester. Engel v Vitale morphed into a ban on voluntary prayer before football games. I could go on but the point is quite simple. The history of 20th century jurisprudence is an activist court moving toward an ever more socially liberal USA and quite like you, I see nothing on the horizon to stop them.

The institution of marriage is on its way out unless the Massachusetts SJC is stopped and if I live long enough, I'll be able to point to all the new laws required to handle the new "marriage" paradigm as evidence of my thesis.

"The history of 20th century jurisprudence is an activist court moving toward an ever more socially liberal USA."

Bullsh%t.

The Court does not lead society, it follows it, simply acknowledging what direction society has already taken.

To use the example of Roe v. Wade, the Court's decision would be utterly meaningless, if societal acceptance of sex outside of marriage was not the norm, and if we as a society had no brought the challenge up to them. The belief that abortion was a woman's right was not created in the vacuum that is the SCOTUS, the argument was brought to them.

You, on the other hand, believe in a form of Judicial activism that would set up the Court as a social engineer, and use the unwillingness of the Congress or State Houses to address sensitive issues directly out of fear of the reaction of the majority voters, to prolong what in many clear cases is an inequity in our laws.

Individuals, who feel that their civil privileges and rights are being violated, and without a voice in our government, and a way to move toward challenging these laws because of the nature of being a minority within the society, need the Courts to hear their arguments, and examine how laws impact the individual.

In Texas, there was not a chance in Hell that the legislature was going to "fix" a bad law, and it was a bad law in spite of whatever you believe.

Now, we LOVE Judicial activism when it suits our purposes, or at least we certainly did in Bush v. Gore, when Rehnquist, Scalia, and Thomas, after spending years fighting the liberal expansion of the equal protection clause, used it to stop the recounts.

Was it activism?

Only if you are a lefty.

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