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.
I can't get past this Luis, it is indicative of an irrational man suffering from cognitive dissonance.
So, in other words, you believe that there were no abortions in the Us prior to Roe v. Wade.
You want irrational?
Find yourself a mirror.
By the way, let it be noted that (as usual), you have already begun the personal attacks, and posts filled with zero substance.
Assuming there was you seem to think it is the courts imprimatur to get a whiff of populism and then make laws from the bench that accord with that populism.
That is not the purpose of the courts, it is the legislatures duty to make laws. The US Constitution guarantees a republican form of government to every state in the union. Judicial oligarchy is not a "republican form of government".
Thirty Eight states have passed DOMA. The people of Massachusetts last year gathered enough signatures to put DOMA on the ballot for referendum. The Massachusetts Constitution explicitly states that marriage is the sole province of the Governor and the legislature. And yet you claim that the Mass SJC is not engaging in judicial activism or if it is it is justified in doing so by populist sentiment.
In either case your idea of the duties of courts to intrepret and not make laws are 180 degrees out of phase from mine and never the twain shall meet. It is basically senseless to carry on the debate becasue the only thing getting any sharper is the animosity.
LOL!
You're kidding, right?
I was there in the early 70's.
Free love, women's rights, burn the bra, and have sex without facing the consequences.
From the moment Roe v. Wade was handed dowen by the Courts, it was welcomed by a large segment of the society.
At least be honest when we "debate".
Let's stick to the evils of Judicial activism, shall we?
In your opinion then, I guess that "Brown v. Board of Education" was a good example of the evils of Judicial activism, because it overturned "Plessy v. Ferguson" which was a great decision by the Court as it was based on the right of the State to enact and enforce "separate but equal" laws.
Am I starting to understand you now?
No Luis, you don't understand anything but it is quite sad to see you resorting to race baiting.
"Marriage is one of the 'basic civil rights of man'...the right to marry means little if it does not include the right to marry the person of one's choice." -- Earl Warren, majority opinion on Loving v. Virginia.
The Massachussets Supreme Court gave the legislature a period of time to re-write laws that they found to be in violation of their State Constitution because they violate the "basic civil rights" of marriage to the person of one's choice..
I don't see your point about Judicial activism here.
In 1948, when 30 states had laws on the books barring interracial marriages, the California Supreme Court, in the case of Perez vs. Sharp, ruled that the state's anti-miscegenation law violated the due process and equality guarantees of the Fourteenth Amendment, more than 90 percent of Americans were against the decision, and supported the laws. At best, they believed such marriages went against the traditional definition of marriage or against God's law. At worst, some wanted to "preserve racial integrity" by preventing a "corruption of blood" and "a mongrel breed of citizen."
Sometimes, a whole bunch of people agreeing on a bad principle is nothing more than a clear indication that people can be wrong in large quantities.
I love the shallow waters you thread!
The Supreme Court of the State of Massachusetts found the law as written by the Massachusetts legislation to be in violation of the civil rights of part of its citizenry, and ordered the legislation to bring it into compliance with the State's Constitution.
All completely legal and within the letter of the State's Constitution.
Yet, you call this activism.
Some changes came about as a result of changes in legislation, others as a result of Court challenges, and some laws we just stop enforcing (topless German stewardesses on the beach in Miami), now, in Massachusetts, gay couples may be able to get married without having to wait for their legislature to build up enough cojones to actually change the State's laws.
America will go on.
Sorry to see you haven't been reading my posts.
Correct. Nor does a longstanding court doctrine make it appropriate (e.g. SCOTUS 1947 creation of absurd restrictions on religious expression in state-run facilities based on a mistaken reading of the First Amendment).
In this case, the Massachusetts law in question is not only long in years, it is very much in good standing, and has a strong rational basis in the promotion of stable families. It is not unconstitutional except under a very questionable ruling by judicial activists.
The ERA insanity was sailing toward ratification when it hit that coral reef of reason named Phyllis Shlafly. Ms. Schlafly has already weighed in on gay marriage (guess which side?) but noone seems to have noticed.
It doesn't matter who it will be whose arguments will sway the country to leave marriage alone. What does matter is that it will happen.
One of the checks and balances of the open society is blind justice. We've developed egalitarianism almost to a fault. We stage cultural interventions to enforce the notion of equal opportunity. We know that without such, it is all too possible for minority cultures to stagnate for generations. But the unchecked impulse to forcibly apply egalitarianism can cause harm. We've seen it happen with communism.
It is not easy to prove one way or another whether gay marriage is an appropriate candidate for even-handedness under the law.
Women are not the same as men, to that everyone agrees, but we agree the law should treat women and men equally in most circumstances. It is equally uncontroversial to aver that homosexuality is not the same as heterosexuality, but we are not agreed as to whether they should ever be treated equally.
Ms. Schlafly was most successful by forcing us to fully face the inevitable consequences of full equality for women under the law. But again, noone has accomplished that splash of cold water to the imagination for gay marriage yet.
For the role of business executive, it appears that male and female candidates are interchangeable. For the role of mother and primary care-giver, PC says the father can do an equal job as primary care-giver. Arguable, but luckily there is no controversy at the moment about these roles. For the role of leading the family unit, are homosexual couples interchangeable with heterosexual couples? There is nowhere near a consensus that they are interchangeable.
It really chafes the libertarian-minded among us to look at the problem from the point-of-view of society instead of merely gauging the satisfactions of the individuals involved.
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