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For Part I, Click Here.

For Part II, Click Here.

In the last segment, Part II, I explained the legal justification on why Prop 8 is fine. As I ended the article, I wrote about freedom. By way of a good transition into this topic, here is a small recap.

A well-intentioned by sadly misled commenter on the Part I column suggested that freedom’s “blessings,” as referenced in the California Constitution, was open for defining, and surely opposed to Prop 8, which tells folks who engage in homosexual behavior that they can’t “marry” a person of the same sex. It goes against this freedom, the commenter argues.

What is freedom? If I’m from Alice’s world, the “Wonderland,” that she found through the mirror, then “freedom’s” up for grabs. Like Humpty Dumpty said to her, freedom can mean “just what I choose it to mean—neither more nor less.” What if it’s “freedom to the contrary?” That would be like me suddenly wanting to change into a turnip. Surely no, we don’t have that. Or me suddenly wanting the ability to fly like a bird. No, again. So freedom is limited to smaller choices, those within as set of boundaries.

Can I decide that when I want to walk off a high cliff, I can choose not to follow gravity? No, again. The Law of Gravity [and the absence of an airplane or wings] determines the consequences of my choices. So freedom is basically a description of choices, but yet these choices are inherently bound by rules to a certain set of consequences. So let’s say that my benevolent benefactor gives me a car. I’m free to put anything in the gas tank to make it go. Water, Sugar, Flour—those are all good ingredients in cake that make me go, so why not try it? Because, again, choices are bound by rules to a certain set of consequences. Gasoline is the appropriate fuel. And it would break the gift given to my by my benevolent benefactor, the gift-giver, to attempt otherwise.

So, even if one takes “freedom” to be an all-out, anything-goes, willy-nilly, rebellion against what another calls “norms,” the choices you make will be bound by rules to a certain set of consequences, no matter what you want inside. It is those negative consequences, like putting sugar in the gas tank, which the people of California wish to avoid by having Prop 8, to perpetuate the blessings of freedom and not stop the “car” of marriage, given by the more than benevolent benefactor, God.

But the question then follows, “What are the rules” relating to marriage which justify traditional marriage? Well, for Prop 8, it’s pretty clear: Marriages are only between people of the opposite sex. Why? For good public consequences. No doubt there are same-sex friends, even homosexual couples, who have great private interests in staying together, for reasons platonic or intimate. But those reasons are not sufficient as a basis for public law. The important distinction is that we find out how traditional marriage works publicly—its public consequences, to defend Prop 8. And the opponents need to show how their unions are equal to or better in order to justify public inclusion of same-sex marriage.

In the context of freedom, granting the relativists all their self-doubt, we’ll proceed to see what justifications exist for traditional marriage, hoping to see that there are proven reasons. Here are some basic justifications for Prop 8, ones that show its public consequences superior to that of redefining marriage to include same-sex couples, and ones that produce a certain set of good consequences: (These are from an article by Lynn Wardle in 24 Harvard Journal of Law and Public Policy 177 (2001) so doubters can look up the stats and references there before challenging these.)

  • safe sexual relations, responsible procreation, and optimal child rearing: These three function best within a heterosexual union. The state has a definite interest to ensure that people who can procreate are committed to each other and stand on that commitment; the nearly two decade dependency of children (until age 18) requires that the state help guide procreative activity into something with legal consequence. Traditional marriage, by encouraging monogamy, also discourages rampant sexual activity and thus transmission of STD’s via the procreative acts necessary to physically perpetuate society. Also, traditional marriage tends to encourages men to be responsible fathers, tying them to their children rather than fostering irresponsible procreation from men not intending to become fathers. Over 30% of all children were born out of marriage in 1996 according to the US Census Bureau, and had increased risks in juvenile delinquency, crime, educational failures, poverty, and welfare distress. These are huge public reasons for promoting traditional marriage. Homosexual acts can’t touch on the procreative aspects and thus can’t justify being included as public good.
  • healthy human development: children raised outside of traditional marriage have a higher risk for child abuse, sexual abuse, and life-threatening violence. Mother’s boyfriends perform about 2% of child care, but are nationally responsible for over 50% of child abuse. This statistic would only increase, as natural parents, while not immune to committing child abuse, have been found far less likely to commit child abuse than their non-biological counterparts. In homosexual marriage, a child is, from the get-go, determined to be absent a parent of one sex and necessarily forced to live with a non-biological adult who is far more likely, based on research, to abuse or neglect that child.  And the fact that abuse does occur in mixed gender parenting relationships doesn’t argue for the opposite.  You can’t take the worst example in one case and pit it against the best of another case.  So the argument for same-sex marriage from a human development standpoint can’t rise to the level of a public good, whereas traditional marriage can.

And so, which consequences do we want, publicly? Like our current economy, in which printing gobs of money sounds good but has bad consequences like guaranteed inflation, we will be bound to the consequences of the decision. Same-sex supports sound good, but, like Wardle writes, the “bill for the exciting adult adventure of opening new frontiers of sexual liberation and experiencing, [through a reversal of Prop 8], the thrill of social endorsement of new relations would be paid by the next generation. Advocates of same-sex marriage would balance the accounts on the backs of children—not just those who would grow up in same-sex homes, but all children who would grow up in a society in which social support for responsible procreation, dual gender parenting, and the linkage between procreation and child rearing had diminished.”

Surely the above reasons are not so wholly unreasonable—concerning only the public concerns of marriage, not the emotional, self-esteem driven private concerns—that Prop 8 supporters are unjustified in their opinions. They simply want to operate within the rules that govern the “freedom” of relationships and find the good consequences, consequences put in place by the author of marriage, God, and rules that, if broken, will break society, preventing Californians as well as others from perpetuating the blessings of freedom as claimed by the preamble of their Constitution.

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.

And,

“[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.

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:

Preamble:
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