The recent arguments at California’s Supreme Court over Proposition 8 offer a window into the circular reasoning of liberal thought on several levels. The title of this post offers a good mental picture to frame the discussion: nearly every dog (or cat) owner has seen their beloved pet frantically running in circles after what it believes is an animal or some other wildly fascinating object. In the instance that the pet catches its appendage, what then? Should it go ahead and bite it, the object of its pursuit? Obviously it doesn’t want that, because should it succeed, and keep eating its tail, the result would be very painful. The Prop 8 opponents are in a similar quandary.
More than enough historical evidence supports the English common law origin, based on Western Judeo-Christian jurisprudence, of traditional marriage. At oral arguments then, it came as profoundly ironic that one of the Prop 8 opponents, when arguing that this fundamental right of marriage was enshrined in the California Constitution, quoted from its Preamble. I reprint both it and the opening to Article 1, it’s Declaration of Rights, for reference as they are fairly short:
We, the People of the State of California, grateful to Almighty God for our freedom, in order to secure and perpetuate its blessings, do establish this Constitution.
And the opening to Article 1:
All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.
To quote this as support of gay marriage, I argue, is the equivalent of the dog catching its tail, biting it, and continuing to eat it for several reasons. In Part I of this series I offer this reason: gay marriage does not perpetuate society and therefore should not have the blessing of the state.
The foundational assumption present in this Preamble is that the people of California want to perpetuate society and the blessings of God. Whether you take that as formalistic deism (doubtful based on the historical record) or true religiosity, the second part of the equation is the perpetuation of society. That can’t possibly happen under a gay marriage context. Now all the exceptionists will shoot down this reason, offering marriage among elderly man-woman couples, barren young couples, and the like as a reason not to provide an exclusive position for traditional marriage. But they forget that the burden is on the gay marriage folks to prove how their unions perpetuate society so much so that the state should redefine traditional marriage, a model which has stood since the beginning of recorded history.
Remember, also, that the argument from the opponents of Prop 8 claim that this right to marriage is an inalienable right, arguing that the state can’t touch it. Well, that argument doesn’t hold water. As former Chief Justice William Rehnquist wrote for the majority when dismissing the physician-assisted suicide cases, a “right” has to be historically grounded and narrowly defined. It must be historically grounded so that we can prove it is an actual right, not a recent cultural fad. Second, one must define it narrowly because the broader the definition the less likelihood of attack. The infamous Dred Scott decision prevailed because it came to the court defined improperly as an attack on property rights, not on the proper narrow question, unfortunately answered yes, on whether one person can “own” another person. Here, gay marriage is not just recent, but an infinitesimal sliver on the expanse of history. Similarly, the right is being defined as the “right to marry a person of one’s choosing,” rather than the “right to marry a person of the same sex.” Defined properly, one can see that this right is no so sacrosanct as its proponents make it out to be. For example, the state carves out exceptions to this “inalienable right” all the time. Age (youth) is a limitation; consanguinity (blood relationship) is another limitation; still another is consent. And no right is being denied a man, or a woman, respectively, that is not denied all other men or women respectively—no man can marry another man and no woman may marry another woman, so all are protected or denied the same exact thing under the law.
In closing Part I, consider this: the popular show “Amazing Race” has a father-son team, of which the father is a gay-rights activist. He frequently says that this race gives him the chance to spend with his son, a relationship which he no doubt enjoys. I similarly relish my life as a father. But he wouldn’t have a son had his “coming out,” the announcement that he was gay, which happened when his son turned 11, come 11 years earlier. He needed traditional marriage to have the son. Likewise, we need traditional marriage to perpetuate society; therefore, the state is free to give it an exclusive position for that reason alone.
End Part I