Rightank

Yesterday, the Constitutional Court of South Africa (”CCSA”) decided to legalize same-sex marriage by fiat. The CCSA’s fluffy opinion is laden with the individualistic niceities of love and devotion but barren in logic and reason.

The CCSA, like many advocates of same-sex marriage, reshapes the societal rationale for traditional marriage and molds it to fit their radical ideals. That is, marriage is not about proceation or the rearing of children. Rather, marriage is really an event that celebrates the individual wants and desires of two people. That individuality not their procreative-potential union is what society was and is protecting when it decided to enact legislation protecting and sustaining traditional marriage. Nothing could be farther from the truth.

The CCSA’s handling of the “procreation argument” illustrates their penchant liberalism. [See paragraph 86]:

However persuasive procreative potential might be . . . from a legal and constitutional point of view, it is not a defining characteristic of conjugal relationships. To hold otherwise would be deeply demeaning to couples (whether married or not) who, for whatever reason, are incapable of procreating when they commence such relationship or become so at any time thereafter.

As I noted in an earlier post, procreation is the main reason why most marriages take place and justifies government protection of that relationship. If procreation is removed, then what difference is there to the nation-state between the union of one man and one woman and the union of two men or two women who admit they are madly in love with each other? Individually, there may be no difference (both heterosexual and homosexual couplings are equally devoted and loving) but societally there is a big difference. Government isn’t in the business of promoting love. However, it is interested in maintaining its population and the stability of its societial framework. Same-sex marriages inherently cannot produce children together. That is why the CCSA and other courts have been forced to disassociate procreation from the institution of marriage.

Disturbingly similiar to Massachusetts, the CCSA gave the legislature an ultimatium–either you legislate same-sex marriage within one year or we’ll be forced to humbly perform the constitutionally-empowered job ourselves. Even more disturbing than that is the dissenting opinion of Justice O’Regan. Justice O’Regan dissented not because she disagreed that to deny marriage rights to same-sex couples was unconstitutional. Rather, O’Regan wanted to legislate same-sex marriage from the bench and completely leave out the South African legislature:

In my view, this Court should develop the common-law rule that as suggested by the majority in the Supreme Court of Appeal, and at the same time READ IN THE WORDS to section 30 of the [Marriage] Act that would with immediate effect permit gays and lesbians to be married by civil marriage officers (and such religious marriage officers as consider such marriages not to fall outside the tenets of their religion). [See paragraph 169].

And this:

The doctrine of separation of powers is an important one in our constitution but I cannot see that it can be used to avoid the obligation of a court to provide appropriate relief that is just and equitable to litigants who successfully raise a constitutional complaint. [See paragraph 170].

Yeah, “constitutional” according to you, Judge. Do you dread Justice Ginsburg or Justice Kennedy writing that same language about the U.S. Constitution? ” Yeah, separation of powers is a important constitutional principle, but, heck so is the right to privacy. Same-sex marriage for everyone!”

A final capstone:

An Act of Parliament conferring the right to marry on gays and lesbians might be thought to carry greater democratic legitimacy than an order of this Court. The power and duty to protect constitutional rights is conferred upon the courts and the courts should not shirk from that duty. The legitimacy of an order made by the Court does not flow from the status of the institution itself, but from the fact that it gives effect to the provisions of our Consitution. [See paragraph 171].

In other words, the CCSA’s order is democratically legitimate because the CCSA is the legitimate mouthpiece of the constitution. Not true, at least in America. Both the Executive and Legislative branches can act constitutionally. Justice O’Regan’s circular powergrab smacks of preening elitism.

The CCSA decision (especially O’Regan’s dissent) showcases the liberal disease of judicial superiority and activism that comforts radical judges when they impose same-sex marriage by fiat–and why if we have more than 4 activists on our Supreme Court, same-sex marriage (despite overwhelming public opposition) will be thrust on America too.

State Representative Tom Brinkman (R-OH) has sued Miami University (Ohio) alleging that the university is unconstitutionally giving health benefits to employees living as domestic partnerships in violation of the Ohio Constitution. Section 15.11 of the Ohio Constitution states:

Only a union between one man and one woman may be a marriage valid in or recognized by this state and its political subdivisions. This state and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage.

Brinkman’s argument is that the domestic partnership benefit granted by Miami University recognizes a legal status of non-marriage that intends to grant an effect of marriage (university health benefits) to gay or lesbian couples. Moreover, Brinkman could also argue that mere recognition of a domestic parternship violates the Marriage Amendment as only marriages between one man and one woman are constitutionally valid.

It will be interesting to see the outcome of the case. In my view, Brinkman has a strong case against the Miami University. If Miami were to lose, then other Ohio universities with similiar policies (e.g., The Ohio State University) would be required to withdraw their domestic partner benefits. More to come in the days ahead.

Hat tip: Dark Angel82 at Free Republic.

As predicted, Texans voted overwhelmingly (3-1) to pass a constitutional amendment protecting marriage between one man and one woman. A 75% passage indicates that the inertia toward constitutionally protecting marriage is strong and robust. Hopefully, a Federal Marriage Amendment (”FMA”) can again garner steam in Washington. A helpful push by President Bush (who promised to support a FMA during his re-election and 2005 State of the Union speech) would be a prudent course of action. Are you listening, Mr. President?

Today, Texans are voting on a constitutional amendment protecting marriage’s definition as “the union of one man and one woman.” The vote, despite attempts by opponents to mischaracterize the amendment’s meaning, will continue America’s movement toward protecting marriage from judicial threat.

Check out this slanted coverage of the amendment:

Supporters and opponents of Proposition 2, the same-sex marriage ban, waged a heated campaign battle that escalated until Election Day.

The pro-Prop 2 group Texans for Marriage launched a television ad over the weekend in the Dallas-Fort Worth, Houston and Austin markets called “For God’s Design.” Its message was that the Bible states God intended for marriage to be between one man and one woman.

On Monday, amendment supporters arranged for recorded calls from Catholic Bishop John Yanta of Amarillo to go out to more than 800,000 Texas households, many of them Hispanic, urging a vote for the proposition.

No Nonsense in November, a leading anti-Prop 2 organization, has held almost daily events and on Saturday led a protest of some 3,000 people in Austin against a small Ku Klux Klan group that had gathered to support the amendment.

Why should a “small” rally of the KKK in support of the marriage amendment garner any space in the article? Only to insidiously insinuate that if you support the marriage amendment, you agree with the KKK. What garbage. After all, if you want to highlight any commendable aspect of the marriage amendment opposition against the tyranny of marriage proponents, it’d have to their stance against 12 Racist White Robes, right?

Polipundit showcases the citizen majorities who have voted to grant constitutional protection to marriage. Bank on the Texas amendment passing overwhelmingly.

Yesterday, in his continued offensive against traditional marriage, Dale Carpenter cleverly moves the procreation argument away from its intended mooring. Let me explain.

Carpenter argues that if procreation is the only reason why marriage should be restricted to the conjugal relationship of one man and one woman, then gays are not prohibited from marriage because some married couples are sterile, some choose not to have children, and some marry later on in life without the ability to father or mother children. However, procreation is not the only reason why marriage should remain heterosexual but it is the main reason.

For example, would a business continue to invest its resources (financial, human, material) to a project or product if there was no benefit to the company? Of course not, unless the business’s goal was to declare bankruptcy. Similarly, why would a Nation which needs to sustain its population and familial culture protect and provide benefits to a relationship where there can be no reciprocation? In other words, how can a Nation who wants to survive indefinitely support gay marriage when no sustainable offspring can come from their union?

Carpenter, like most if not all same-sex marriage supporters, blur and confuse society’s interest in marriage with individual interests in marriage:

Culturally, . . . [a] procreation-only view of marriage is even more questionable. Even couples who have children do not view their marriage as being only or even primarily about procreation. Their marriages are about children, yes, but also love, religious faith, commitment, and caretaking. For those couples who can’t or won’t have children, their marriages are obviously also not justified by procreation.

It is not the couple’s interest in procreating (and definitely not their love or level of commitment) that justifies state support of marriage. Rather, it is the state’s interest in a procreative couple–and the optimal, unique environment that a male/female coupling provide–that controls. As such, the marriages of infertile couples or couples who could procreate but choose not to are justified by procreation. Infertile couples are justified because when they took their vows, they intended raise children which aligns perfectly with the state’s interest in protecting procreative couples. Furthermore, the more selfish, childless couples who choose not to have children are infertile by choice–not by genetic or other circumstances beyond their control. The state’s interest in marriage–a union with independent procreative potential–is still achieved. The individualistic interests of that couple occur after the fact.

One final retort: Carpenter more than once has fawned that 49 states permit gay adoption (except Florida). That might be useful for his argument–if it were true. Here’s Utah’s adoption law which does not permit same-sex couples to adopt:

78-30-1. Who may adopt — Adoption of minor — Adoption of adult.
(1) Any minor child may be adopted by an adult person, in accordance with the provisions and requirements of this section and this chapter.
(2) Any adult may be adopted by another adult. However, all provisions of this chapter apply to the adoption of an adult just as though the person being adopted were a minor, except that consent of the parents of an adult person being adopted is not required.
(3) (a) A child may be adopted by:
(i) adults who are legally married to each other in accordance with the laws of this state, including adoption by a stepparent; or
(ii) any single adult, except as provided in Subsection (3)(b).
(b) A child may not be adopted by a person who is cohabiting in a relationship that is not a legally valid and binding marriage under the laws of this state. For purposes of this Subsection (3)(b), “cohabiting” means residing with another person and being involved in a sexual relationship with that person.

Oops.

Dale Carpenter’s defense of same-sex marriage over at Volokh has been interesting and informative articulation of that side of the debate. Today, Professor Carpenter attempts to challenge the definitional argument of marriage, i.e., that marriage is the exclusive union of one man and one woman. Frankly, Carpenter’s argument is ensconced in unfavorable realities that one must ignore in defending gay marriage.

Initially, Carpenter obscures the definitional argument:

One of the most common arguments against gay marriage is definitional. This definitional argument against gay marriage generally takes the following form: “Marriage just is the union of one man and one woman. What same-sex couples are asking for is not marriage. So same-sex couples cannot be married.” It offers no normative defense of the definition; it stops there.

Clearly, marriage’s definition limits marriage between one man and one woman. Based on defintion alone, same-sex couples are prohibited from marrying (except in Massachusetts where four black robes wrested marriage’s defintion for the benefit of gays). Carpenter argues that defintionally, there is no normative defense. I disagree. The definition of marriage between one man and one woman is a normative expression. It might not offer an explicit defense within its grammatical constructs, but marriage’s definition implicitly evinces a normative uniqueness (male-female coupling) that merits protection. Moreover, marriage’s definition is an institutional and political defense of traditional marriage. Simply stated, if traditional marriage were not defined within the law, then it could not be protected.

Carpenter slyly insists that because gays and lesbians are challenging marriage’s definition, proponents of traditional marriage cannot hold-up that definition as validating their position or a reason why gays shouldn’t be allowed to marry. Carpenter’s insistence is incorrect and alludes (unintentionally?) why in his conclusion:

Given how logically weak the bare definitional argument is, why does it persist?

The answer, I think, is that behind it is a powerful, unstated intuition that important social institutions ought to have stable attributes (meanings) over time. This is a deeply conservative instinct and I share it to a very large degree.

The “conservative instinct” Carpenter mentions is actually historical fact. Marriage’s definition has been consistent over centuries. That historical consistency is built into marriage’s definition and is one of the reasons why legislators from all 50 States specifically sought to protect and support it by codifying its definition. This historical aspect of marriage is undermined by loosening or casting aside pro-traditional marriage arguments based upon marriage’s definition as conclusory or without normative meaning. American history (including marital history) is something same-sex marriage advocates (and liberals in general) would like the American people to forget.

Carpenter’s definitional disenchantment belies the societal value of traditional marriage and its definition.

Much of the reaction to Alito’s nomination has been predictable. Liberals are questioning if not oppositional while conservatives are overjoyed that Bush did not nominate another diversity pick (Miers) or someone otherwise unqualified.

After reviewing Judge Alito’s opinion in Saxe v. State College Area School District, I am more confident that Alito is a great choice by President Bush. Saxe involved a suit by a Christian parent who objected to their school’s Anti-Harassment Policy (”AHA”) because he does approve of homosexuality and who felt that he and his children would be punished for expressing those beliefs. The AHA policy protected, among others, harrassment based upon sexual orientation:

Harassment on the basis of sexual orientation is unwelcome verbal, written or physical conduct directed at the characteristics of a person’s perceived sexual orientation, such as negative name calling and degrading behavior.

. . .

Other harassment on the basis of such things as clothing, physical appearance, social skills, peer group, income, intellect, educational program, hobbies or values, etc. may also cause or effect substantial interfering with a student’s educational performance or creating an intimidating, hostile or offensive environment. This type of harassment is also protected against by this policy and procedures.

Clearly, the policy was political correctness run amok. Judge Alito’s emphasis on protecting the First Amendment rights of all schoolchildren (even those who objected to homosexuality on religious grounds) is outstanding:

[T]he Policy prohibits harassment based on personal characteristics that are not protected underfederal law. Titles VI and IX, taken together with the other relevant federal statutes, cover only harassment based on sex, race, color, national origin, age and disability. The Policy, in contrast, is much broader, reaching, at the extreme, a catch-all category of “other personal characteristics” (which, the Policy states, includes things like “clothing,” “appearance,” “hobbies and values,” and “social skills.”) Insofar as the policy attempts to prevent students from making negative comments about each others’ “appearance,” “clothing,” and”social skills,” it may be brave, futile, or merely silly. But attempting to proscribe negative comments about “values,” as that term is commonly used today, is something else altogether. By prohibiting disparaging speech directed at a person’s “values,” the Policy strikes at the heart of moral and political discourse–the lifeblood of constitutional self government (and democratic education) and the core concern of the First Amendment. That speech about “values” may offend is not cause for its prohibition, but rather the reason for its protection: “a principal ‘function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.’ ” (citations omitted). No court or legislature has ever suggested that unwelcome speech directed at another’s “values” may be prohibited under the rubric of anti-discrimination.

Scalito saw that values-based discrimination (i.e. religious discrimination) was contrary to the purpose of the First Amendment, which is and was an invitation to poltical, social, or religious disputations held in the public square. Moreover, a hurt feelings do not trump an individual’s verbal expression of conscience, particularly religious expression which is explicitly protected in the First Amendment.

Scalito’s unwillingness to ride the wave of discrminatory lawlessness is great news for Americans who value freedom and an originalist view of the First Amendment.

Thanks to Liberty Counsel for highlighting the case.

Professor Dale Carpenter’s piece on today’s NRO is a carefully massaged bit that attempts to streamline areas of agreement with conservatives about traditional marriage and ultimately, gay marriage.

First, Carpenter assumes that one can be a true conservative and support gay marriage. If you’re socially liberal (i.e., favor gay marriage) then you are not a true conservative. David Brooks, Andrew Sullivan, Jonathan Rauch, and George Will are not true conservatives–they are moderates at best. A true conservative is conservative in his social views (marriage, abortion, gay rights) and his fiscal philosophy (free markets, little goverment regulation, etc.). Carpenter doesn’t espouse a conservative case for gay marriage. Rather, he supports a moderate one.

Carpenter lists ten premises that he believes both proponents and opponents of same-sex marriage can agree on. Sorry to disappoint, Professor Carpenter.

His first premise:

(1) Marriage benefits society, and so anything that harms marriage harms all of us, whether married or not.

Not all marriages benefit society. For example, a marriage between one man and one woman who are closely related (brother/sister, 1st cousins) do not benefit society as do a conjugal union whose consanguinity is more distant, if at all related. Why? Because the offspring of the former are more likely be degenerative and bear children (though precious) with disabilities and other birth defects. (Carpenter acknowledges that “[m]arriage should remain reserved for two adult persons not closely related by blood”–a tension with his first premise he apparently does not recognize). Marriage–meaning the traditional union of one man and one woman–benefits society because they bear children and provide the optimal childrearing environment for those children. Same-sex marriage would not nor does it provide that societal benefit.

What benefit does same-sex marriage provide? Carpenter advises that the benefit of same-sex marriage would be (1) encouraging long-term commitment of gays and (2) “settling” gay men (whatever that means). So what? Where is the benefit? What would that long-term commitment produce for society? A reduction in the amount of HIV cases per year?

Moreover, does mere “encouragement” or “settling” of a minute (though politically active) population within society warrant a radical defintional change of marriage?

SSM advocates cannot rely on the traditional or results-oriented marriage benefit if they want to change its definition. Rather, they must assert (as Carpenter does) that marriage is about individual satisfaction (i.e., lasting commitment) and that if individualistic then denying gays the opportunity to marry is unconstitutional discrimination because as individuals they choose to sate their lust in a same-sex relationship.

The benefits society receives from traditional marriage are benefits that a same-sex coupling cannot provide (procreation and optimal child-rearing environment) to society at-large. Any disagreement between “conservatives” is not going to change the societal benefits of sustainability that traditional marriage provides. That’s already settled.

Professor Eugene Volokh has been kind enough to permit Maggie Gallagher, President of the Institute for Marriage and Public Policy, to guest-blog about the dangers of same-sex marriage (”SSM”). It is a rare event that an opponent of same-sex marriage is taken seriously, especially among academics and intellectuals.

Maggie has posted some great stuff about why same-sex marriage would destroy and irreparably harm traditional marriage.

First bite:

The now-common view (thanks largely to the SSM debate itself) is that marriage as a legal status matters because it opens the door to a host of benefits that incentivize marriage. (Thus, folks argue, the incentives for opposite-sex couples will still be the same, how can gay marriage matter? As Evan Wolfson likes to say, they aren’t running out of marriage licenses.).

I don’t think its true the law incentivizes marriage through benefits (although I have to confess I wouldn’t mind if it were), so I also don’t think this accurately describes how the law of marriage currently matters. Most people don’t get anything that feels like a check from the government when you marry. Many, probably the majority of people, take a financial hit when they marry. (Through the tax code and the welfare system, see Eugene Steurele’s study in the latest issue of The Future of Children).

If you think about it from a law and econ perspective, it’s amazing anyone does marry. Marriage means voluntarily subjecting yourself to state regulation, paying more taxes (or forgoing the EITC), and assuming legal and financial responsibility for another person. In return for what exactly? The right to order an autopsy?

There are some big financial benefits to marriage (that are legal incidents of marriage I mean), but I don’t think they are very powerful as incentives for marriage, for the simple reason that most people marry relatively young, and most of the big benefits occur after one of you is dead (a social security benefit, the right to pass your estate untaxed). Ok., there is health insurance for some people (although others upon marriage lose access to government health insurance. This latter loss may be particularly significant to young pregnant women, possibly people with HIV, too.).

So I believe, as someone whose thought pretty hard about law, public policy and marriage, that the most important remaining way the legal institution of marriage supports the social institution of marriage is in fact definitional.

Marriage’s unique status at law helps draw clear public boundaries that distinguish between those who are married and who is not, allowing the more important actors who support the social institution to do their work.

Redrawing the definitional boundaries of marriage, is thus fiddling with the law’s core remaining support for marriage (and we’ve withdrawn quite a few legal supports in recent years).

Isn’t that what the radicals who advocate SSM want to achieve–definitional chaos? By severing marriage’s definition from the exclusivity of the male/female coupling, marriage loses its ties with procreativity. Moreover, same-sex couples would not be entitled to any government-derived benefits of marriage because the intended cohort of the benefit (a heterosexual union) has been expanded beyond the type of “marriage” those laws were tailored to help.

Second bite (addressing the argument that infertility of heterosexual couplings weakens the procreative argument supporting traditional marriage):

A subtler argument sometimes made is this: well, we have some nonprocreating couples in the mix. Why would adding SS couples change anything? Two points: SS couples are being added to the mix precisely in order to assure that society views them as “no different” than other couples. This intrinsically means (if the effort is successful) downgrading if not eliminating the social significance of generativity (procreation and family structure). The second truth is that both older couples and childless couples are part of the natural life-cycle of marriage. Their presence in the mix doesn’t signal anything in particular at all.

Isn’t societal assurance just want the homosexuals want? They want society to acquiesce to their chosen gay or lesbian lifestyle. That is really what the same-sex marriage movement is about. It’s not about strengthening marriage or society. It is about legimatizing through the law a lifestyle practiced by a scant minority of Americans yet disapproved of by a super-majority. Moreover, Gallagher’s point decleats SSM advocates’ argument that an absence of fertility proves that marriage is not tied to procreation and illustrates the substantial concern a definition change would bring–elimination of link between society and marriage.

SSM advocates aren’t interested in longevity (i.e., the impact of SSM on society 50 years down the road) and their push to change marriage’s definition proves it.

In the October 24 issue of National Review, David Frum had this to say in his article addressing the Miers nomination:

[T]he President’s Christian faith has not been inconsistent with his abandonment of the Federal Marriage Amendment the instant he was reelected . . .

Frum’s astute aside caused a lightning bolt go off in my mind. Why hasn’t President Bush addressed the Federal Marriage Amendment (”FMA”)? Why hasn’t he pushed it?

Since W.’s State of the Union address on February 2, 2005, he has been silent on the FMA. He called marriage a “sacred institution” and the “foundation of society and added:

For the good of families, children, and society, I support a constitutional amendment to protect the institution of marriage.

If saying little is supporting, then President Bush is doing a stand-up job on the FMA. It’s a shame Congress could not appropriate the FMA, as President Bush wouldn’t spill ink vetoing the expenditure. Incredibly, Bush told Washington Post reporters unabashedly before his SOTU speech that he decided not to push the FMA:

In a wide-ranging, 35-minute interview aboard Air Force One on Friday, Bush laid out new details of his second-term plans for both foreign and domestic policy. For the first time, Bush said he will not press senators to pass a constitutional amendment banning same-sex marriage, the top priority for many social conservative groups.

To make matters worse, the national party is following the President’s lead of passive support. If you go back to the Republican Party Platform, issued during the Republican Party Convention of 2004, the platform has this to say about preserving marriage:

We strongly support President Bush’s call for a Constitutional Amendment that fully protects marriage, and we believe that neither federal or state judges nor bureaucrats should force states to recognize other living arrangements as equivalent to marriage. We believe, and the social science confirms, that the well-being of the children is best accomplished in the environment of the home, nurtured by their mother and father anchored by the bonds of marriage. We further believe that the legal recognition and the accompanying benefits afforded couples should be preserved for that unique and special union of one man and one woman which has historically been called marriage.

Yet, on the Republican Party’s offical website, one has to struggle to locate anything supporting the FMA. In the “Faith and Values” team section, there is a bullet point that says “President Bush believes that marriage is the union between one man and one woman. He supports a Federal Marriage Amendment.” That’s it. In addition, the issues section—where all the important issues are highlighted—contains nothing about supporting the FMA or traditional marriage. I doubt that’s an unintentional gaffe by the party elite.

Without strong presidential and congressional support, the FMA will go nowhere. Time is running out. The ACLU and their radical allies are consistently bringing one lawsuit after another, intending to wreak havoc among state laws and apply pressure to weaken the Defense of Marriage Act, state constitutional provisions, and other state law that explicitly define marriage between one man and one woman. Already miffed at conservatives who have criticized his nomination of Miers, Bush’s reticent stance is unlikely to change. The FMA will likely languish in Congress, resulting in yet another Second Term disappointment for conservatives . . . and that’s a shame.