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.
An individual's choice of sexual partner is of no concern to the government, as long as they are both consenting adults entering into a non-incestous relationship.
Indeed, by drawing a legal distinction between homosexuals and heterosexuals in the application of laws, you create a new classification of citizen.
So the result of your restriction is that We The People cannot, through our representatives, make any laws that embody this assumption. The law must treat committed homosexual relationships as of equal value to a man and woman who marry and procreate.
Sorry, it doesn't make sense to me.
NutBoy, post my entire quote next time.
"So the result of your restriction is that We The People cannot, through our representatives, make any laws that embody this assumption." -- You
Had you posted my entire quote, the fact that I set in place parameters vis a vis the contention that incest was not to be permitted, would have become apparent, and as such, the fact that I do believe that some legal restrictions are called for in this issue would have become crystal clear.
But as far as a question of which citizens get issued marriage licenses by the government and which do not, the decision must be based on existing laws.
As far as I am concerned, being a homosexual is not illegal in this nation, so laws restricting same sex couples from receiving marriage licenses do not have a legal basis.
"The law must treat committed homosexual relationships as of equal value to a man and woman who marry and procreate."
The Law may not draw a difference on citizens based on whether they are homosexual, or heterosexual as there is no legal definition of the term "homosexual", and the moment you create one, you have also created a new "type" of citizen.
It isn't illegal for a homosexual to marry, except if that homosexual wishes to marry another homosexual, and according to SCOTUS, the ability to marry the person of your choice is one of our basic civil rights.
This restriction could not possibly be based on the couple's ability to procreate, as people who are literally on their death beds can be issued marriage licenses, infertile people are not restricted from receiving marriage licenses, and people well beyond the age of procreation are issued marriage licenses.
So, if homosexuality is not a crime, and procreation is not a requirement for obtaining government issued marriage licenses, what reason does the government have to restrict homosexual marriages?
Is the law enjoined to treat committed heterosexual relationships of people who do not procreate as of equal value to a man and a woman who do?
So what? I am so weary of deflecting this ridiculous argument. Since marriage is defined as the union of a man and a woman, then people on their death beds and infertile men and women are welcome to get marriage licenses. OK?
The reason why marriage is defined as a union of a man and a woman is that men and women in general do procreate. Marriage is important to protect the family structure, which in the vast majority of cases involve mothers and fathers.
No.
By simply defining marriage as a union of a man and a woman, there is no need to commit to those legal definitions. However, it is impossible to avoid them in a debate concerning what the Massachusetts SJC has done; i.e. declare the definition itself unconstitutional.
It is beyond argument that homosexuality directly bears on the reason the suit was brought in the first place. Therefore, whether there is any legal definition of homosexuality before or after this debacle, the issue is whether the laws of the people are required to treat the homosexuality of gay couples as equal in the eyes of the law to the heterosexuality of married couples.
The Massachusetts SJC asserts an absurdity: that it is not even rational to make this distinction. I believe myself to be rational when I say that in one category the sexual coupling can sometimes result in procreation, but in the other category, the sexual coupling can never result in procreation.
Moreover, the Massachusetts SJC is calling irrational a majority of Americans who would like to keep the definition of marriage exactly as it is.
You are still stuck on this, aren't you?
We already know that earlier legal precedent has established that the right to marry the person of one's choice is "one of the basic civil rights of man" (Loving v. Virginia, Chief Justice Earl Warren writing the majority opinion), so there's no "simply" doing anything of the sort you keep harping on.
You have this idea that what has already been defined as one of the "basic civil rights" of man, can be violated by "simply" violating it!
"...the Massachusetts SJC has done; i.e. declare the definition itself unconstitutional."
Because the Massachusetts State Constitution violates the civil rights of a segment of the population (homosexuals) according to the definition of the right to marry set forth in Loving v. Virginia by the SCOTUS.
"...the issue is whether the laws of the people are required to treat the homosexuality of gay couples as equal in the eyes of the law to the heterosexuality of married couples."
No, the issue is whether the people have a right to treat them differently based on a guideline that isn't applied to heterosexual couples...whether there will be an issue from the marriage or not.
By the way, a homosexual couple can procreate the same way any childless heterosexual couple can procreate, by means of surrogates, in vitro fertilization, etc.
Unless you invalidate these methods of procreation to all citizens, then set the ability to procreate as a standard for licensing of all citizens wishing to receive a marriage license, the State will be violating the basic civil right to marry the person of one's choice as defined by Loving v. Virginia.
Our side always enters legal fights as if they are to be fought in a vacuum where the other side has no argument of any merit, and when they win and we sink in the dark waters of defeat, we instantly yell "ACTIVIST", when in fact, we should be kicking ourselves in the butt for not having seen the damned iceberg in our path.
Like it or not, the decision of the Massachusetts State Supreme Court is based on solid legal precedent.
Allowing same-sex couples the right to marry in no way changes other people's ability to marry, and raise families.
"Since marriage is defined as the union of a man and a woman"
Guess what?
That definition is about to change.
You asked me (I don't know why) whether the law is enjoined from treating heterosexual couples who cannot have children different than those who can. I said "No."
You disagree (again I don't know why). Just because there is no such law doesn't mean that such a law would be unconstitutional. "The question is not asked of them at the time of licensing" is totally irrelevant to what the Constitution allows or doesn't allow.
Rookie mistake there, the Constitution must ENPOWER the government to do specific things. In other words, the Federal government cannot do anything that the Constitution does not specifically grants it authority to do.
In turn, State governments can only do those things specifically authorized by a State's Constitution, any powers not specifically granted to the Feds or the State, falls back on the citizens.
A State may not violate civil rights by passing a law.
This refers to:
I believe myself to be rational when I say that in one category the sexual coupling can sometimes result in procreation, but in the other category, the sexual coupling can never result in procreation. -NutCrackerBoy, 408
What I was saying was that the main purpose of marriage (from the point of view of the state) is to regulate the ramifications of procreation and that is a very rational reason to define the institution as the union of one man and one woman - the same way it has been defined in church and civilization since antiquity. But you asked something different. Let me take two iterations to rephrase your question. You tell me if by doing so its sense is lost.
Rephrase #1: If lawmakers acting on our behalf (or activist judges) redefine marriage so that marriage licenses are issued to same-sex couples, how will it diminish the ability of heterosexual couples to procreate?
Rephrase #2: How will marriage licenses being issued to same-sex couples diminish the effectiveness of marriage from its main purpose - to regulate the ramifications of procreation.
I think this is a reasonable (after the rephrasing) question. My answer is two-fold:
1. Litigation will begin at once to change the legal structures of marriage to better accomodate same-sex couples. These changes will be impossible to resist if the equal protection argument holds sway. Marriage will be transformed into something different. Something that by definition has nothing to do with procreation.
2. It is just illogical to include a class which never procreates into a legal status whose main purpose has to do with procreation.
Using that definition in law does not create a second-class citizen of someone who:
a. does not want to marry a person of the opposite sex
b. would like to form a union with a person of the same-sex and have the state treat that union exactly as it does marriage.
It seems you will throw out the law as unconstitutional because the constitution did not specifically empower government to ask that question. Your position is absurd.
No.
Your lack of understanding of our system of government is abysmal.
The only powers that government have are those specifically granted to them by the Constitution.
Amendment X.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Translation for the hard of understanding:
The Constitution grants powers, those powers not granted specifically to the Feds by the Constitution, or prohibited to the States by the same Constitution, fall on the States, or the people.
The Feds have no powers other than those specifically granted to them by the Constitution.
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