Public intellectual George Weigel continues his series for First Things describing what the marriage debate is about:
"...Throughout history, just states (whether democratic or not) have understood that there are limits to their powers: There are certain things that just states simply cannot do.
With rare exceptions, the just state cannot interfere in the doctor-patient relationship or the lawyer-client relationship; it can never interfere in the priest-penitent relationship; it ought to be extremely chary of interfering in the parent-child relationship (save in obvious cases like abuse); and there are limits (always subject to debate and adjustment) about the state’s reach into the employer-employee relationship. The just state acknowledges the integrity of these primary, fundamental, civil society relationships and protects them legally. It has no business reinventing or redefining those relationships, for the just state exists to serve civil society, not vice versa.
Marriage is the primordial civil society relationship, for it is the basis of the family, which is the primordial civil society institution. That is why, for millennia, states have protected marriage, understood as what it is: the stable union of a man and a woman ordered to the begetting and raising of children. When a state claims the right to alter the definition of marriage to include same-sex relationships, it is tacitly claiming the right to redefine the number of persons who may make a marriage (why stop at two?); it is also tacitly claiming the right to redefine, by governmental fiat, every other pre-existing free association of civil society.
That claim is antithetical to the freedom of individuals, families, and society." (First Things)
18 Comments
Interesting; but what about when citizens themselves allow SSM, like WA, MD, ME (and New Mexico in 2013 maybe)? Is there a difference between the state expanding a freedom and limiting it, in terms of what level of consent is needed from the people?
@Will,
According to SCOTUS precedence States are permitted to expand upon limits established by SCOTUS within the boundaries of their respective territories and they are free to roll back said expansions providing they do not go beyond limits previously established by SCOTUS.
So was expanding marriage to include gay couple by referendum in ME, WA, and MD constitutional permissible or not? If not under what SCOTUS precedent? It seems there is a much lower bar to clear when expanding any freedom than there is with restricting one, no? In any case we will see if I'm right this spring.
Those states did not so much “expand” marriage as “redefine” it, as Weigel correctly points out. I see this redefinition as ill-advised, but not unconstitutional, and there has been no serious constitutional challenge to those redefinitions, nor is one likely any time soon. Weigel makes an interesting case that there should be a constitutional challenge, but there is not sufficient political will for it at present. In any event Weigel argues that redefining marriage infringes on the pre-political nature of the family, i.e. that redefining marriage restricts rather than expands freedom. I am not quite convinced, but it is an interesting argument to consider.
The federal polygamy cases established the right of the government to define marriage. The traditional definition of marriage was affirmed by the political branches and endorsed by the Supreme Court.
The Roberts Court is likely to leave the definition of marriage to the political branches, as it did in the Obamacare decision. That would mean upholding the federal DOMA and leaving each state to its own legal definitions.
SCOTUS has already opined that Congress has the right to re-define providing they establish a compelling government interest in doing so. For example; a tomato is defined as a vegetable under Federal law even though a tomato is, in fact, a fruit.
So, if the Federal government can establish a compelling government interest that trumps the 1st Amendment rights of nearly three-hundred-million citizens, by changing the meaning of marriage, then the Supreme Court will probably side with the government over the people.
Highly unlikely when you consider the fact that the Supreme Court is made up of living breathing human beings who would probably like to remain so.
I take exception to this post, though i do not believe in civil SSm, or such civil unions, and believe so-called SSm is irrelevant and offensive to true marriage.
Here's why: State government decides the age at which a minor turns into an adult, and the age a minor can obtain a marriage license. In the case of mentally deficient persons, the State also decides if they can obtain a marriage license. But in all these cases, civil marriage is still between opposite sexes (and historically in the USA, between only a man & a woman).
Only recently have certain States broken with their previous rational stand on what marriage is and why the State favors it.
It behooves the State to make the correct decisions regarding all these types of recognized civil relationships, such as employer and employee, because the State will suffer the consequences.
But the State CAN make the choice.
It is getting into 'deep water', so to speak, and previously has had the insight to limit its involvement in these relationships to only the most exceptional situations.
But if the voters give the State the power, the State can do anything.
Given enough power, the State can even change its own Constitution, but generally the power of the legislative branch can barely reach enough votes to amend its constitution, very rarely. Supposedly, the more a constitution is amended, the more perfect it gets.
The power of the State is limited because voters have insight, and can override the mechanical function of politics and politicians, for the good of the voters, and for the next generation. The basic assumption in our form of government (State or Federal) is that voters know what is good for them, care to protect their liberties, will take part in elections, and want a better place for their next generation. But the more individualistic people get, the less they care about others, and about the next generation. At some point the basis for a representative democracy is broken, and anarchy is required to avoid total chaos.
Supporters of same-sex “marriage” are not simply “like” totalitarian movements but rather are, in & of themselves…literally totalitarian The origins of Totalitarianism go back to the French Revolution. [The Origins of Totalitarianism - Hannah Arendt] Under classic liberal enlightenment thought the traditional family is what is called a “intermediary social institution” That is it exist between the naked individual & the State. There are any number of such institutions including Universities, Trade Unions, Religion, Political Parities, Press outlets, and the like… These are covered under our “right to free association” under the 1st amendment. The entire collection of these institutions, including the family are known as “civil society”. Of these “intermediary social institutions” – marriage & the family has always been considered the primary one. As old as Pericles the family has been considered a bulwark against state tyranny. Marriage & the family are considered to pre-exist the State and even religion. That neither created marriage, but that it evolved organically. The State did not create marriage, it simply recognizes it as one of our natural rights. That is why & how it became recognized as a fundamental constitutional right and international human right. In the Mass. Goodridge case the Court addresses this understanding in its decision – “We begin by considering the nature of civil marriage itself. Simply put, the government creates civil marriage..” This is no mistake that the Judge in such a prominent case starts off with this argument. If the State creates marriage it can uncreated marriage or redefine marriage. A totalitarian state is considered one who doesn’t recognize these “intermediary social institutions” – Hence “totalitarian” = total social control by the state. Marriage is the basis of the family and the family is considered to be the ultimate “intermediary social institutions” – with rights against the State.. All this is well established fact in the history of political philosophy and represented well in the case law.*
{Supreme Court precedents of Turner v. Safley, 482 U.S. 78 (1987); Zablocki v. Redhail, 434 U.S. 374 (1978); Loving v. Virginia, 388 U.S. 1 (1967); Griswold v. Connecticut, 381 U.S. 479 (1965); Skinner v. Oklahoma, 316 U.S. 535 (1942) } Under international human rights law and Supreme Court precedent marriage is considered a fundamental right; the state must recognize marriage as originally defined. It can no more redefine marriage than say redefine “speech” to mean “saying those things the government wants you to say” or redefine “arms” to mean “down pillows”. This is not slight of hand but rather naked subterfuge.
If NOM's allies like George Weigel had their way, we would not be allowed to have legal recognition of same-sex civil marriage under any circumstances, whether judicially, legislatively, or by a direct vote of the people. NOM's "let the people vote" is shown to be the mere lip service it has been all along, a convenient talking point only as long as "the people" were voting the way NOM wanted them to.
re nr. 6
re nr. 6 I see no evidence that NOM is challenging the votes of the people via the courts. Can you cite a court challenge that substantiates your claim?
“A majority held in restraint by constitutional checks and limitations, and always changing easily with deliberate changes of popular opinions and sentiments, is the only true sovereign of a free people.” Abraham Lincoln, First Inaugural Address
Does not NOM support NYer's for Constitutional Freedom's lawsuit filed in Livingston Cty to overturn SSM in NY (based on alleged violation of open meeting rules)?
re nr. 8
But that vote was not a vote of the people! It was not a referendum. The case rests of the assertion that the legislature was not following its own rules, not that the legislature lacked the constitutional ability to legislate.
Apparently it's fairly easy to earn the title "public intellectual".
This suit does not challenge the competency of the legislature to decide the issue, only whether they were following their own rules.
Some SSMers here are confusing process and outcome (i.e. means and ends).
A legitimate process can lead to an unjust outcome. SSMers say this all the time when they complain about the man-woman criterion of marriage law. That criterion is a legal requirement, legitimately enacted and sustained, but one which they seek to abolish through whatever means they can find.
So they have relied on the abuse of judicial review. That in itself is a unjust means. They have relied on unconstitutional procedural obstructionism -- in Massachusetts for example -- to thwart pro-marriage constitutional amendments. They have depended on the abuse of executive power -- see the Obama Administration for the latest examples. SSMers have misused process to get the outcomes they demand.
But neither a right use of process nor an unjust use of process can make an unjust end, just.
The SSM idea is merely a specious substitution for marriage. It is marketed today with a gay emphasis which, it turns out, is superfluous to the SSM idea itself. It is clearly an outright rejection of the marriage idea. Defense against the pro-SSM attack on marriage is a response to the unjust means and the unjust ends sought by the SSM campaign.
So whether or not SSM is imposed by unjust means or by just means, the outcome would be hostile to the common good.
Look, if there was no abuse of judicial review this SSM campaign would have been stopped in its tracks in the court system. But abuse occurred, blatantly, and that has pressed the Law into conflict with the marriage idea. This, in turn, has pressed Government into direct conflict with the marriage idea and with the defenders of marriage -- in other venues such as legislatures and public forums around the country. When politicians begin to assume that the Government can own and recast marriage as a wholly government-made thing, then, marriage becomes far more vulnerable to substitution.
Even direct popular votes that would impose the SSM idea would be unjust -- whether or not the process was technically legitimate. Unjust because the rhetoric and argumentation of the SSM campaign varies very little in the courts, legislators, executive chambers, and on the stump in direct votes. That rhetoric and argumentation is heavily burdened with self-defeating contradictions.
The SSM idea is a conceptual mess. Add the gay emphasis and you have the recipe for using Government to impose the supremacy of gay identity politics by leveraging the societal significance of this foundational social institution of civil society.
The racist white supremacy of past days did likewise. It abused marriage for a decidedly non-marriage purpose; for a decidedly anti-marriage outcome; and used whatever means they could find to impose an outright falsehood in place of the moral truth.
MLK spoke openly of the conflict between means, ends, and the moral truth. Today's leaders of the pro-marriage movement pursue the defense of marriage through legitimate means because the marriage idea itself is a just end. If we were to use unjust means for a just end, that would not transform those means into a just process.
The end sought by the marriage defenders is not a gay-centric outcome. The gay emphasis is irrelevant to the marriage idea. Marriage law is neither for harming the gay identity group nor for entrenching the supremacy of the gay identity group. Marriage is for the integration of the sexes; for the provision of responsible procreation; for these as a coherent whole. So the law of marriage must, first and foremost, NOT obscure this core meaning of marriage. Marriage law is for marriage, not other stuff.
Marriage is pre-political. It exists without political intervention. But Government can get marriage wrong. SSMers argue that the law is wrong and must be revised so they do understand the basic point that marriage law can be wrong; and it can be right. This depends on how closely the law is drawn around the core meaning of marriage itself.
Marriage, as a type of relationship, is distinguishable from other types of relationship. As such, it is up to us to clearly delimit the marriage law to serve marriage rather than to serve some grand purpose outside of marriage. It is up to us to clearly sustain marriage rather than obscure marriage to serve the demands of an identity group -- be it the white identity group or a gay identity group.
The SSM idea is an unjust end pursued with unjust means.
The SSM campaign has abused judicial review, abused executive power, and abused the legislative process as well.
In all of these venues the SSM rhetoric and argumentation varies very little. That rhetoric and argumentation is self-defeated by profound contradictions. The SSM idea is a conceptual mess and it would be unjust to foist it on society through any means.
Legitimate means -- or legitimate processes -- do not make an unjust end into a just outcome.
Publius, yes. The suit is filed. It seeks to overturn SSM in NY. NOM supports it. BTW, if NOM feels that legalized SSM in ME, MD, or WA infringes on people's freedom, as it seems to think,, it is free to make its case in court. The absence of any legal action in those states suggests that NOM doesn't really believe its own 'religious freedom' argument.
The suit is filed, but not on the grounds that the people or their representatives have no right to decide the issue (Weigel’s claim, which I am not prepared to accept), only on the narrow, but important grounds that the legislature failed to follow its own rules. One has to wonder how the left would view right wing bills passed in violation of an open meetings act. See
http://www.lc.org/index.cfm?PID=14100&PRID=1218
The religious freedom cases come after the SSM crowd starts suing someone, after telling us SSM won't affect anyone else.
In any event, I think the SCOTUS will properly leave the issue to the political branches, leaving the federal DOMA and the state DOMA's intact.
Will, you might see it as a suggestion on the part of NOM, but it would hardly be more than speculation on your part. You would substitute your speculation for the beliefs of NOM.
Once again, fire, ready, aim! Heh.