In the last article, I touched briefly on the natural law/perpetuation argument of why Proposition 8 is logical. A well-meaning comment shifted my plan for Part II, redirecting me to elaborate here on the “due process” argument. The Prop 8 opponents here suffer from another logical fallacy, that of over-generalization. I’ll boil it down.
Here’s the background to understand the marriage argument. Back several years ago, a group of physicians and terminally ill patients in Washington sought for the Supreme Court of the United States to declare that the patients had a constitutional right for the physician to intentionally prescribe them an overdose of drugs to facilitate ending their lives. The question they offered to the court was whether they had a constitutional right to determine how to end their life. The case was Washington v. Glucksberg.
The court already had process for dealing with those claims to “rights.” They ask two questions: first, is the alleged “right” properly defined; second, is the alleged “right” deeply rooted in the history and tradition of our nation. As for the patients, the court concluded that the “right” was properly defined as the “right to physician-assisted suicide.” The court remarked that yes, defining it properly has a lot to do with the outcome. It referenced the Dred Scott decision, remarking that in order to avoid the narrow preliminary question of “can one person ‘own’ another,” the pro-slavery folks asked the court “Can the court interfere with someone’s property rights.” When viewed this broad, surely the chance for a successful attack was minimized.
Prop 8’s opponents presented a similar strategy. Instead of “can a person marry another person of the same sex,” the appropriately narrow question, they have expanded it against any attack by describing it as “the right to marry a person of one’s choosing.” More on this later.
This segues into the second question: is the alleged “right” is deeply rooted in the history and tradition of our nation? The answer here is categorically no. Gay marriage is a recent fad. The historical record is absent of the right to marry a person of the same sex.
And the state has made exceptions since the beginning of our nation’s history, as noted in Part I: blood relationship (commonly referred to as “consanguinity” in legal jargon); consent; and age (children or folks generally under 18, or 16 with parental consent—referred to as “infancy” in legal jargon). Why can’t sex be a defining characteristic? (To be addressed in Part III).
But back to the alleged “right” again as defined by Prop 8 opponents, the “right to marry a person of one’s choosing.” If this really was the question, and no further analysis was required, what could possibly not be encompassed within that definition? Nothing, really.
“[You should] fight for same-sex marriage and its benefits, and then, once granted, redefine the institution of marriage entirely. The most subversive action lesbians and gay men can undertake is to transform the notion of ‘family’ entirely.”
— Homosexual Activist Michelangelo Signorile, “Bridal Wave,” OUT, December 1993 – January 1994.
“[We] will dethrone the traditional family based on blood relationships in favor of the families we choose.”
— Homosexual Activist William Eskridge, “The Case for Same-Sex Marriage,” 1996.
And that’s the unstated goal—the right to make a family of whatever composition desired. This notion sounds like true “freedom.” But what is freedom? Does freedom involve knowledge? For example, I can opine all day long about the politics of, say, Nicaragua, but the more I actually know about Central American politics, factually, the “less” free I am to say whatever willy-nilly thought comes to mind and the more constrained I am by the truth. With marriage, it is no different. The less I understand about marriage, I can claim any intrusion upon the free ability to marry anyone is unjustified. The more I know, however, about the function of a family, why a family exists, what the purpose of a family is, the less able I am to freely redefine its structure. Once the qualities and attributes of a family are known, then one can see why true freedom is best served by Prop 8, a freedom addressed in the California Constitution: to “secure and perpetuate [freedom’s] blessings,” given by God.
Part III will discuss the the functions and qualities of a family and how Prop 8 is suitable to perpetuate freedom’s blessings within that context.