14 July 2010

Law, Right and Marriage

Cal Thomas finds intellectual inconsistencies throughout the recent federal court ruling that the 1996 Defense of Marriage Act was unconstitutional because it infringed on a state's right to allow same-sex marriage. He claims to be surprised by this assertion of states' rights when liberals typically reject them in favor of individual right or federal power. Turning from the court to critics of the disputed law, he finds their claim that the federal government cannot regulate marriage belied by an 1878 Supreme Court ruling that polygamy had no right to constitutional protection. Observing liberals generally, he finds them hypocritical for believing, allegedly, that "morality, as well as right and wrong, are to be determined by polls," yet demanding that the polls be overturned if people take disagreeable moral stands. In sum, he denounces a "cultural elite" determined to have its way without regard for consistency of principle.

Thomas believes that his own position on this particular law, and law in general, is principled and consistent.

Law is meant to conform humans to a standard that preserves the cultural and moral order. The purpose of government is to “secure” unalienable pre-existing rights about which Thomas Jefferson wrote in the Declaration of Independence...Government is not supposed to create new rights like national health care, or same-sex marriage.


I actually admire Thomas's restraint in not dragging the "Creator" into this, as he'd usually do. The natural-law tradition he invokes here, however, is bad enough whether it invokes God or not. It's also impossible to verify. Since not even the most devout theocrats claim that we've enjoyed all our natural rights from the beginning of civilization, the natural-law or natural-right tradition has been a process of gradual discovery. How can anyone claim that we've now reached the limit of our natural rights? How can they know, and how can their limitation be trusted when every previous assertion of "natural" right has been challenged on the exact same ground? How do we know that arguments against same-sex marriage, for instance, aren't just bigoted?

Thomas expects such a question. He's resigned to having "the equivalent standing of 1950s segregationists" among liberals for opposing same-sex marriage. In their view, he claims, "Anyone arguing for tradition is branded a bigot, a label that is supposed to end all discussion." This isn't quite accurate. Anyone arguing for a bigoted tradition is rightly branded a bigot, and the opponents of gay rights in the 21st century are the moral equivalent of the racists and anti-semites of earlier times. Bigotry is not redeemed or sanctified by age. Two-thousand year old bigotry is still bigotry. Are Pashtuns not bigoted against women because their tradition tells them to treat women that way? It is likewise with homophobes everywhere. The "word of God" doesn't transmute bigotry into principle; it only proves someone a superstitious bigot.

Still, it's a fair question in a democratic republic whether the people have the power or right to dictate the terms of marriage. Obviously, people can claim the right to forbid same-sex or plural marriage, but are they justified by any compelling public interest in the sexual relations or shared property of two or more people? Thomas argues that the Supreme Court denied rights to polygamists on "general welfare" grounds. But who defines the general welfare? Did the Founders do so for all time in 1787? Is it up to a popular vote at the drop of a hat? I'd like to read the Reynolds v. United States ruling that Thomas cites to see how polygamy influenced the general welfare in those judges' opinion. I suspect that their definition of general welfare wouldn't stand the test of time, but who can say whether mine or ours would, either? To the extent that marriage involves reproduction or the raising of children, general welfare might well be involved, but conventional heterosexual marriage might well be subject to fresh regulation on similar grounds, whether husbands and wives want it or not. Leaving aside the self-evident absurdities of tradition of religion, the definition of marriage in a democratic society is arguably part of how citizens affirm their accountability to one another, and thus always a subject for political debate, no matter how much anyone would want to exclude it from debate as an eternal absolute right. As I see it, it's people like Thomas who try to place tradition above criticism who try to "end all discussion," not those who challenge it in the media, in the courts, or on the street.

10 comments:

Crhymethinc said...

Then I guess we better get rid of automobiles. TVs and everything else that didn't exist when Thomas Jefferson was raping his slaves. Honestly, these conservatives are just utter imbeciles. If they want to live out their lives like that, no one in stopping them as far as I am aware, but if continue on in this insanity of attempting to force everyone else to live like that, they will have to die.

Samuel Wilson said...

To be fair, there's a difference between "new rights" and new consumer goods. Buying what you can afford works the same way now that it did then, though it should be noted, since you mention Jefferson, that some things that could be bought and sold then can't be now. That actually begs the question of whether some other rights we now take for granted will be proven false in the future by philosophers of natural rights.

Michael Ejercito said...

The only proper procedure for recognizing new rights is to amend the Constitution, as it was amended to protect a right to women's suffrage forty-six years after the Supreme Court ruled in Minor v. Happersett .

We know there is no right to polygamy under our U.S. Constitution. And under Murphy v. Ramsey , the Supreme Court ruled:

For certainly no legislation can be supposed more wholesome and necessary in the founding of a free, self-governing commonwealth, fit to take rank as one of the coordinate states of the Union, than that which seeks to establish it on the basis of the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization; the best guarantee of that reverent morality which is the source of all beneficent progress in social and political improvement. And to this end, no means are more directly and immediately suitable than those provided by this act, which endeavors to withdraw all political influence from those who are practically hostile to its attainment.

Unlike Minor's relevance to women's suffrage, no constitutional amendment had been ratified to undercut Murphy's relevance to the state's power to define marriage, or its rationale for such definitions. And until the Constitution is amended, Murphy , as well as Baker v. Nelson , is good law.

Samuel Wilson said...

Michael: In some cases the remedy to a reading of the constitution that limits rights is not an amendment but an improved reading of the document. One court's ruling may be revised by future courts, as the Brown v. Board of Education court overruled the Plessy v. Ferguson court. The value-laden language you cite from Murphy v. Ramsey looks like a textbook case of extra-constitutional reasoning that's ripe for revision.

Crhymethinc said...

Mike, you moron. No one has yet said we should ban Christianity or close all churches. You are fully allowed to believe whatever superstitious nonsense you wish. But you DO NOT have the right to continue trying to shove your lies, superstition and fear down the throats of the rest of us. Keep your religion to yourself or risk you and your family becoming martyrs.

Michael Ejercito said...

What would be the basis for the Supreme Court to overturn Murphy v. Ramsey and Davis v. Beason ? ( Davis , 133 U. S. 333 , upheld a law that prohibited polygamists and members of organizations that advocated committing polygamy from voting. It was cited as recently as Church of Lukumi Babalu Aye v. Hialeah , 508 U.S. 520 . Notably, the marriage quote in Murphy was cited in Davis )

Samuel Wilson said...

Michael: What is, strictly speaking, constitutional in the passage you cited in your first comment? It sounds like a judge's subjective value judgment to me, and how binding can that be? To get back to the point, how much more binding is it on future judges than Plessy v. Ferguson?

Michael Ejercito said...

The passage in my first comment was cited in Davis v. Beason as one of the justifications used to uphold the Edmunds-Tucker Act against a First Amendment challenge.

Davis and Murphy are still binding as they have not been overruled.

Samuel Wilson said...

Thanks for the clarification and the acknowledgement that these precedents can be overruled by the court itself as well as by amendment.

Michael Ejercito said...

Yes, in theory Murphy and Davis could be overruled just as McDonald v. Chicago and Loving v. Virginia could be overruled.