Being Anti-Slavery, Part II

I started Part I of this post yesterday talking about the need to defend religious freedom. And then discussed the Arizona bill to protect business owners from being forced to engage in services against their religious beliefs, which Governor Brewer had just vetoed. Not surprisingly, the Houston Chronicle headlined that story as, “Arizona governor vetoes anti-gay bill,” even though there was no mention of homosexuality, “same-sex marriage,” or anything related in the bill—only a strengthening of existing religious protections to include private business owners in private transactions.

And then, the top front page story was headlined, “Texas gay marriage ban struck down.” So much to cover, so little time. Texas never “banned” “gay marriage.” To ban something, it must first exist and then be discontinued. Texas law has always defined marriage as a contract between a man and a woman. With encroaching threats to that long-standing (forever) definition, the Texas legislature passed DOMA legislation in 2003, which was immediately made irrelevant by the badly worded Lawrence v. Texas ruling. So in 2005 (the next available opportunity), Texas passed, by an overwhelming three-quarters of voters, a state constitutional amendment reiterating the long-standing definition. That is what is being struck down—and in doing so, a single judge is telling the state of Texas it has no right to determine its own legal definitions. That is a serious infringement of state sovereignty.

I could do another whole post on that, but the judge is not changing what happens for now, pending this and similar cases being ruled on by the US Supreme Court. So, for now I’ll set that aside and get back to the attack on religious freedom we were already in the middle of.

Let’s do this as something of a game: “Who Decides?” We’ll look at various scenarios related to business exchanges, and you take each case and say who decides—the service provider or the service requester.

Lawyer

1)      There’s a lawyer, asked to represent an embezzler, who admits he did it but wants to get off. The lawyer doesn’t want to take the case, because, while everyone deserves good representation, an embezzler doesn’t deserve to avoid punishment, and it seems immoral to the lawyer to work toward that end. Should the lawyer be allowed to make that choice, or should he be forced to represent the embezzler simply because the request was made?

If you say the lawyer can choose, you’re in agreement with the law. In theory, a lawyer who knows his client is guilty can’t represent him as innocent; he would have to encourage the accused to plead guilty. If the accused client claims innocence, the lawyer can choose whether to take the case based on many personal decisions—unless he’s assigned by the courts to represent the client, because everyone is entitled to legal counsel. But even then, he can only represent the client as innocent if the client claims to be innocent (theoretically).

2)      What if the lawyer is asked to represent an environmentalist group that is working to keep a large area of farmland from being irrigated? What if the lawyer feels strongly (not religiously, but personal belief) that the environmentalists are wrong? Is he nevertheless required to represent their cause simply because they came into his law firm and made the request? Conversely, suppose a pro-environmentalist lawyer is asked to represent a clear-cutting logging company?

If you say the lawyer can choose, you’re in agreement with the law, again. A lawyer/client relationship is considered intimate enough that either party can choose not to work together.

3)      The Attorney General is required to represent the state (nation) and its laws, so if the law of the land defines marriage as a contract between one man and one woman, a definition used in thousands of places in US laws and regulations, is the AG required to defend a law, even if he personally finds it objectionable?

If you said yes, you would be in agreement with the law. If you said no, you would be in agreement with our current law-defying AG, who also encourages state AGs to personally nullify any law they disagree with, in violation of their oaths of office. The difference between the AG and a private practice lawyer is that oath of office. The lawyer is a free citizen, who can enter into an agreement with a client or not. The AG takes on the specific job of representing a specific client—the federal government—and is breaking the contract already entered into when he refuses to keep his oath. He could, if there is a personal distaste, assign an individual working under him to do the job, rather than doing it himself where he doesn’t have the heart or mind to make a good defense. But he is required to give the country the best defense of the law possible.

 

Artist

1)      An artist paints landscapes and historical pieces, and often religious works. He also makes a living taking on commissioned works, including family portraits. Suppose someone requests that he paint the family portrait with the subjects all nude (it’s unclear whether the subjects would actually be nude during a sitting session)? If he finds this objectionable, whether for religious reasons or just distaste, is he required to take on the commission?

2)      Suppose an artist is ethnically black and feels strongly against diluting the race by intermarriage, and a client is a black man and Asian woman couple getting married? He feels angry, and sees only ugliness in the couple. So, since his motivation is racist, should he be forced to take on the commission regardless of his strongly held (but non-religious) beliefs?

3)      Suppose an artist is ethnically white but feels strong antipathy toward people of other races, and a client is a black man and woman and their two children. He sees only ugliness in the client family. So, since his motivation is racist, should he be forced to take on the commission regardless of his strongly held (but non-religious) beliefs?

4)      Suppose an artist is religious, and believes in the sanctity of the natural family—married mother and father raising their children. Suppose a married client comes in to commission a portrait of himself and his mistress? The artist feels a strong sense of indignation against the glorifying of an adulterous relationship, and sees only ugliness in the client couple. Since the artist is engaging in commerce, is he required to take on the commission, even when the client is asking him to go against his strongly held religious beliefs?

5)      Suppose an artist is religious, and believes in the sanctity of the natural family. And suppose a client couple, two men (or two women), come in and ask for a painting of them in the act of kissing. The artist is uncomfortable with the request, sees only ugliness in the commission being requested. So, since his motivation is religious, but could be labeled homophobic, is he required to take the commission and create the artwork regardless of his strongly held beliefs?

If you said no, you’re in agreement with the law. Either side can decide whether to contract the commission. An artist spends a good amount of skill, time, and part of himself into a work of art. If, for any reason, he feels he can’t do the work in a way that would either please the client or make him feel proud to have the piece of art represented in his body of work, he can turn it down. Life is just too short for an artist to spend time on something he doesn’t have the heart to create. It would be very unlikely that anyone would sue an artist for refusing to take on a commission. Much more likely would be after-the-fact contract difficulties, based on whether the artist completed the work to the client’s satisfaction. Because of the time and money involved, almost everyone agrees the artist can’t be forced to create a work of art he doesn’t want to create and never contracted to create.

Photographer

1)      A professional photographer makes a living doing portraits, family groups, weddings, and other special events. Suppose a client requests semi-nude portraits, intended as a gift to a spouse. If the photographer finds this distasteful, whether for religious reasons or just discomfort, is she required to take on the commission?

2)      As with the artist, a black artist with strong anti-miscegenation beliefs is asked to photograph a black/Asian couple’s wedding. Since the motivation is racist, and the request is clearly for a legally sanctioned wedding, is the photographer required to take on the client?

3)      What about a photographer who simply hates people of other races? Is the photographer required to go against her strongly held racist beliefs and take on a portrait session with an ethnically different family?

4)      Is the photographer with strong religious convictions required to take as a client an adulterer and his mistress?

5)      Is the photographer with strong religious convictions required to take as a client a “same-sex marriage” celebration?

Is the photographer different from the artist? Why? Maybe because of the time involved. But photography also requires skill, equipment, time, and an artist’s sense. There’s a story I heard this week about a skilled photographer who was asked at one point to photograph President George W. Bush, and he refused because he so strongly disagreed with the president that he said he couldn’t do him justice, and they’d be better off getting a different photographer. His honesty most likely led to a better portrait outcome than that skilled photographer would have been able to create.

Is there a point at which you can say, “No, that photographer has gone too far; they’re beliefs are wrong, so they should be required to act against their beliefs”? If so, at what point, and how do you—or some entity—decide where that point is?

Restaurateur

1)      Suppose a restaurateur has an irrational sense of hatred toward redheaded women—because of a past unrequited love. Suppose this restaurateur sees every redheaded woman as the embodiment of evil, and he refuses to serve such a person. Is he required to serve redheaded women against his strongly held (albeit irrational) beliefs?

2)      Suppose a restaurateur has a room often rented out for special events, including wedding receptions. Photos are taken identifying the special location that is his restaurant. Food served represents the reputation of the restaurant. Is the restaurateur required to rent the room for a “same-sex marriage” celebration, even if such a celebration goes against his strongly held religious belief that marriage is between a man and a woman?

The concept of public access comes up here. Generally speaking, a restaurant open to the public is required to serve whoever walks in—unless the person’s behavior, dress, or something else is in violation of the stated requirements of the place (“no shoes, no shirt, no service” for example, or “men required to wear tie and jacket”). Usually public access includes requirements for wheelchair access. Discrimination on the basis of hair color would be very bad for business, whether or not it’s illegal to act on such an irrational belief. It might be best if other employees simply distract their crazy boss when redheads come in—no government intervention needed. Otherwise, word gets out, and the business closes from lack of patrons.

Use of a special room is an additional service, subject to scheduling and other decisions at the discretion of the restaurateur. It would be hard to say the restaurateur must provide this special service any more than requiring him to provide something off the menu, or purposely burnt. He might choose to oblige, or he might decide it wouldn’t be worth the risk to his reputation, or simply not worth the bother.

If this freedom should be removed when the motivation of the restaurateur is considered “anti-gay,” how is that different from other beliefs? Who decides what the motivation of the restaurateur is, and when it crosses a line that disallows him the freedom to serve or not serve?

Some confusion has arisen based on whether a business is “public.” A public business is a government owned entity, such as a public utility company or transportation company (subway line, bus line). A business that serves the public is still a private business; it depends on ownership, not on who is served. A public business pretty well must serve all the public, because the people own it. A private business is owned by private citizens, even in the form of a corporation. It provides goods or services in exchange for money, in free and open trade.

But some states have identified a difference based on location: a baker with a storefront must do what anyone walking in requests. While a baker working out of her home is not held to that requirement, because her cottage business is not “public.” What if there’s a little storefront at the house? Do you lose the right to decide what services you provide when you put out a sign?

Landlords

1)      Suppose a landlord owns a building renting out medical office space. Is this landlord required to rent space for an abortion clinic, even if the building owner has strongly held religious objections to abortion?

2)      Suppose a woman runs a boarding house, where she provides one or two meals a day, and roomers share bathroom facilities. Can she insist that boarders be either male or female and refuse whichever she’d rather not have?

3)      Suppose a man advertises for a man to share the rent in his two-bedroom apartment. A respondent to the ad is a homosexual male. Is the man required to accept this respondent, even if he’s uncomfortable living with someone who might view him sexually?

4)      In the above scenario, is a person required to rent to someone who has different moral standards—uses drugs or alcohol that the renter disapproves of, or is promiscuous (even if agreed to keep it outside the apartment)?

5)      Is a landlord or apartment complex manager allowed to discriminate against homosexual renters? How about discriminating based on other moral objections?

Laws related to property renting differ, mostly related to intimacy. A person has a lot of control over sharing their own living space. There are rental anti-discrimination laws on the books. But, depending on location and stated purpose of the place, some restrictions may be allowed. For example, renters can discriminate against families with children, if they’re set up to accommodate older couples and/or singles. Many renters discriminate against pet owners. 

So, here’s the simple answer: requiring someone to perform a service against their strongly held beliefs is slavery. If we’re against slavery, we’re against such coercion.

Does that mean we should even do away with anti-racial discrimination laws? I’m not ready to completely go there, because I didn’t live in a place where people actually oppressed based on race, while the idea was supported by the community. The real answer is changing people’s hearts.

But pretending that the coercion to celebrate whatever the homosexual agenda says we must is a particular threat to our freedom. They aren’t logically comparing themselves to former slaves and subjects of racial discrimination. They are insisting on the power to enslave free citizens to do their will. Homosexual activists (a small subset of homosexuals and their allies) are the pro-slavery lobby of our day.

Legislating Morality Part II

The Brief History of the "Right to Privacy"

Part I discussed the fatal contradiction within the Windsor decision, allowing the federal government to define marriage different than state definitions in other instances, but not for DOMA. Today, I wanted to discuss the line of cases leading to Windsor to provide a backdrop for part III, where I will explain how the reasoning behind this line of cases is problematic. In Windsor, the majority opinion states that section 3 of DOMA served no other purpose than to “demean the couple, whose moral and sexual choices the Constitution protects, see Lawrence, 539 U.S. 558.” As Scalia correctly points out in dissent in both Windsor and Lawrence, the constitution nowhere provides protection for homosexual conduct. In reality, the constitution protects no sexual conduct at all.

In Lawrence, Justice Kennedy explained the path that led to the decision that homosexual conduct is protected by the Constitution, despite clear precedent in decisions such as Bowers v. Hardwick that sodomy is not protected conduct. As Kennedy observes, the line of erroneous reasoning began with Griswold v. Connecticut.

In Griswold, the court chose to invalidate a state law prohibiting the use of contraceptive drugs and devices. The court defined a new “right to privacy” as the interest protected in their decision, specifically emphasizing the marital relation and the protected space of the marital bedroom. It should be noted that this new “right to privacy” is in no way connected with the long accepted “right to privacy” granted by the fourth amendment against unreasonable searches and seizures.  Instead, the new “right to privacy” is based off “substantive due process rights,” or rights by the fact that the protected thing is deeply rooted in this Nation’s history and tradition.

But the court soon expanded this newfound “right” to include certain decisions regarding sexual conduct beyond the marital relationship. In Eisenstadt v. Baird, the court determined a law prohibiting the distribution of contraceptives to unmarried persons was unconstitutional, because it denied unmarried people “equal protection” of sexual conduct. The Eisenstadt court exclaimed, “If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”

Further expanding on this new “right to privacy,” the court then decided the infamous Roe v. Wade. In Roe, the court struck down a Texas law prohibiting abortions, recognizing a woman has a right “to make certain fundamental decisions affecting her destiny.” Apparently, such fundamental decisions extend beyond choosing to engage in conduct which may result in a child and/or choosing to use contraceptive measures to prevent fertilization. Roe instead provided women the option to choose not to live with the consequences of their actions. (A right by the way which somehow men are not equally entitled to, but that is a discussion for another day).

Following Roe, the court again expanded the new “right to privacy” to include decisions made by persons legally unable to make decisions. In Carey v. Population Services Int’l, a plurality decision struck down a New York law prohibiting the sale or distribution of contraceptive devices to persons under 16 years of age. Subsequently, persons who could not even purchase spray paint, for fear the person might misuse it, are protected from “governmental intrusion into matters so fundamentally affecting [that] person as the decision whether to bear or beget a child.”

This line of reasoning led Kennedy to determine that the “right of privacy” to engage in sexual conduct extended beyond the marital relationship to include even homosexual conduct, which had been prohibited by state laws for “hundreds” of years, though rarely prosecuted due to a lack of evidence.  Kennedy summed up the sentiments to say that

Adults may choose to enter upon [a relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals] in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.

So far, we’ve seen that there is a fatal flaw in the Windsor ruling. And we’ve followed some of the linkage from case to case as the Court somehow discovered additional “rights” to sexual behavior protection in the Constitution. But we have not yet reached the end of connecting the dots. I am again at my word limit, so I will continue this for one more day to show the logical conclusion to this line of reasoning.

Legislating Morality Part I

This is Political Sphere. Mrs.Spherical Model is out of town and has asked that I guest post for her. I have been working on this series in my spare time, as was mentioned in a recent post. I have split up the series into three parts. Today exposes a fatal flaw in United States v. Windsor. Part II will discuss the history of decisions which led to Windsor. And Part III will discuss flaws with Windsor's precursor, Lawrence v. Texas.

United States v. Windsor and the Congressional Power to Define Terms

“In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretations of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or wife.” 1 U.S.C. § 7.

The case of United States v. Windsor was an interesting attack on the right of Congress to define terms and to legislate morality. I have often heard the argument that a person should not legislate morals on others. But “morality” is simply a doctrine or system of moral conduct, and “moral” is defined as of or relating to principles of right and wrong in behavior. So, if a system of laws punishes or encourages different types of behavior, then that system of laws is legislated morality, whether it is legislating thou shalt not murder or requiring that all fast food restaurants post calorie counts on their menus. Because the United States is a representative democracy, that set of legislated morality, then, is meant to represent society’s moral ideals as codified by our elected representatives. Therefore, it is beyond argument that a society must legislate morality, or it falls into anarchy.

This brings us to the erroneous logic in Windsor. According to the opinion in Windsor, the history leading to the passage of DOMA was that, while no state in the union accepted such a definition at the time DOMA was passed, Hawaii was considering allowing people of the same gender to be married under state law. To protect states that did not accept this definition as morally acceptable, the Republican Congress passed DOMA which was then signed by Democratic President Clinton. DOMA allowed for states to determine the definition of marriage within their borders, and allowing the state to limit acceptance of marriages performed in other jurisdictions to those between one male and one female, the commonly accepted definition for “hundreds,” if not thousands, of years. Further, because it was the universally recognized definition, instead of addressing the definition in every act ever passed by the United States Congress separately, DOMA included a blanket definition limiting the definition of “married couple” to that of the traditionally, universally accepted definition, and defining spouse as a member of a married couple of the opposite sex.

The majority in Windsor recognizes the United States Congress has the power to define terms as used in statutes, citing that the court had accepted this in regards to marriage just this term in Hillman v. Maretta. Indeed, it is well-established that a statutory definition supersedes the common meaning of the term when applied to the law. For example, if Congress passed a statute defining “fish” as a young goat, then, for the purposes of the law, any time the term “fish” came up it would in fact be referring to a young goat and not apply to a creature with gills that swims in the water, as the dictionary defines the term. How then did the court determine that it was unconstitutional for the Congress to do something that settled law allows Congress to do?

The answer to that question comes from the majority’s reliance on previous erroneous opinions, specifically Lawrence v. Texas, as well as an incorrect statement that while “Marriage laws vary in some respects from State to State... these rules are in every event consistent within each State.” I say this is an incorrect statement, because the statement directly contradicts what the majority opinion previously noted. In addition to the citation of Hillman v. Maretta, the court observes that other statutes (8 U.S.C. § 1186a(b)(1) and 42 U.S.C. § 1382c(d)(2)) define marriages and spouses regardless of the State’s view on the marriage for the purpose of federal laws.

While this contradiction undercuts any validity of the majority opinion, more dangerous reasoning comes from the statement “The differentiation demeans the couple, whose moral and sexual choices the Constitution protects, see Lawrence, 539 U.S. 558.” Of course Lawrence v. Texas is the landmark case which ruled that anti-sodomy laws were unconstitutional, overturning Bowers v. Hardwick. Because this blog is already way over a decent word count for a blog, I will leave the discussion of Lawrence for later.

Marriage Rulings

It was a bad day for black robes. It is said that our freedoms are never safe when the legislature is in session. You could say something similar about when the Supreme Court is in session. Wednesday was the last day of this session, so, at least for a few more months, we can say “phew,” and stop fearing the daily onslaught.

At some future point I’d like to do a scorecard on the SCOTUS, but today the news about marriage is too heavy to cover more than that. Wednesday’s two rulings were on DOMA and Prop 8. (I wrote about the cases and issues at stake on April 1^st.) Let’s start with this declaration first, because the news is creating less than truthful headlines: neither ruling declared “same-sex marriage” the law of the land. Both rulings, while not going the way I thought they should have, were minimalist in effect. 

Supreme Court
photo from NPR

DOMA

A portion of the 1996 Defense of Marriage Act was struck down as unconstitutional. The law—which was brought forward by a Republican Congress, but was signed by Democrat President Bill Clinton, and his Democrat controlled Senate, and which Obama claimed to support until a few months ago—had definitional purposes. As far as federal law was concerned, marriage would be defined as a contract between a man and a woman, and spouse would be defined as one of the marriage partners, the opposite sex of the other spouse. The change brought about by Wednesday’s ruling is to eliminate a federal definition, meaning the federal government will use the definition allowed in any particular state. Essentially the outcome is that federal employees in states that allow for same-sex “marriage” can receive spousal benefits. There will probably be other eventual outcomes, and further confusion, but at this point that is the limit of the definition elimination.

The unfortunate part of the ruling is the reasoning. The majority opinion claims that the reason the definition needed to be eliminated was that its only purpose had been to harm certain less popular citizens. There was no legal rationale; there was only the supposition that the justices could divine the motives of the Congress, Senate, and President who codified into law what had been assumed to be true for the entire history of the country—and indeed for the entire history of civilization—and somehow discern that it was based only on hatred against a particular innocent group.

Scalia (may he live long!) wrote a scathing dissent. It was around two dozen pages; here are a couple of excerpts:

But to defend traditional marriage is not to condemn, demean, or humiliate those who would prefer other arrangements, any more than to defend the Constitution of the United States is to condemn, demean, or humiliate other constitutions. To hurl such accusations so casually demeans this institution. In the majority's judgment, any resistance to its holding is beyond the pale of reasoned disagreement. To question its high-handed invalidation of a presumptively valid statute is to act (the majority is sure) with the purpose to "disparage," "injure," "degrade," "demean," and "humiliate" our fellow human beings, our fellow citizens, who are homosexual. All that, simply for supporting an Act that did no more than codify an aspect of marriage that had been unquestioned in our society for most of its existence—indeed, had been unquestioned in virtually all societies for virtually all of human history. It is one thing for a society to elect change; it is another for a court of law to impose change by adjudging those who oppose it hostes humani generis, enemies of the human race.

He’s right. The real concern is the condemnation of all of us in the majority who still hold to the age-old definition of marriage as enemies of the human race. Condemning the masses as sub-human simply for disagreeing with the current liberal cause de jour is certainly not the intended purpose of having a judicial branch. Scalia adds this:

It takes real cheek for today's majority to assure us, as it is going out the door, that a constitutional requirement to give formal recognition to same-sex marriage is not at issue here—when what has preceded that assurance is a lecture on how superior the majority's moral judgment in favor of same-sex marriage is to the Congress's hateful moral judgment against it. I promise you this: The only thing that will "confine" the Court's holding is its sense of what it can get away with.

Considering how correct the liberal court feels itself to be, they were restrained in their result. They failed to claim there was a constitutional or basic human right to same-sex “marriage,” and instead allowed continued federal government confusion at the mercy of state differences. If they thought they could have gotten away with acting more strongly against the majority of Americans, they probably would have done so. 

Prop 8

The Prop 8 ruling was, as feared by both sides, a punt. The case was dismissed because the Supreme Court preferred not to grant standing to a private organization to defend a state law. Here’s a summary, again, of the situation.

The people of California long ago (around 2001, I believe) voted to continue defining marriage as a man and a woman; the state legislature overruled the people’s will. So the people responded through the initiative process and codified the traditional definition of marriage to overrule the legislature. This was Prop 8, which won in 2008 with 52% of the vote (a clear majority, and if you look at the voting, you see that only a few urban masses voted against the proposition, while nearly all counties had majorities voting in favor). Despite the win, a few judges flouted the law and “married” same-sex couples, and a judge decided to overrule the people from the bench and say that was lawful, because he thought it should be (he was a homosexual judge with an agenda, but refused to recuse himself or even be objective). The state of California was required to defend the law against this judicial behavior, but it refused. So the organization that had supported Prop 8 asked for standing. The case has been making its way up through district and circuit courts on its way to the Supreme Court.

outcome of Prop 8 vote
graphic source: Wikipedia

The Court said Wednesday that, because the Court had never before allowed a private entity to defend a state law, it would not do so now. In the process it overturned the 9^th Circuit ruling and essentially said the law needed to be defended by the state of California. If the state continues to refuse to defend the law, that probably means judges may choose to “marry” same-sex couples afoul of the law, and there will continue to be confusion about the validity of those “marriages.”

But any way you look at it, the Supreme Court ruling fell short of approving same-sex “marriages” in California, and also gave a ruling that can only be applied to that particular state.

The aftermath isn’t good for real marriage, but it is worse for the initiative process for those states that have it. It says, “Sure, you can have an initiative process, but the outcome is irrelevant if the state government doesn’t happen to agree with the outcome.” The will of the people was seriously degraded with this ruling. 

Flotsam and Jetsam

While it could have been worse, the outcome for civilization was negative from these rulings. More than laws, however, which were only minimally affected, the opinions flamed the hateful vitriol against supporters of traditional marriage.

A comparison was brought to my attention, in a piece by Ben Shapiro for Breitbart. It was a case with Bob Jones University, back in 1983. That private university, a religious institution, had a rule against interracial dating. I never understood the belief against interracial dating or marriage. It seems odd and archaic today, but there were parts of the country (mostly southern) that held to separation of races longer than other places. So, while we may clearly disagree with Bob Jones University’s beliefs on that issue, they weren’t unheard of at the time. Their non-profit tax-exempt status was removed—not because they suddenly became a for-profit organization, but because their beliefs weren’t politically correct:

Government has a fundamental, overriding interest in eradicating racial discrimination in education … which substantially outweighs whatever burden denial of tax benefits places on [the university’s] exercise of their religious beliefs.

The Court decided against the University based only on its beliefs. So the question is, could the Court do the same with churches, schools, businesses, and other organizations that hold what they deem is an “enemy of the human race” belief?

The tactic of the tyrannical hemisphere has been to control the language, the message. To move popular opinion until people think what they used to know instinctively isn’t so anymore. And anyone who still has the old common sense are labeled the “enemies of the human race.” At least we have a Supreme Court justice who spelled out what is happening, so there’s a record for historical anthropologists to someday dust off and discover.

I tend to consider the relationship to civilization when history happens before our eyes. I came across this quote during the days’ post-decision reading, and it seemed apt:

This time, however, the barbarians are not waiting beyond the frontiers; they have already been governing us for quite some time. And it is our lack of consciousness of this that constitutes part of our predicament. We are waiting not for a Godot, but for another—doubtless quite different—St. Benedict.  —Alasdair MacIntyre, After Virtue 

Hopeful Extra

Thursday the 10^th Circuit Court ruled in favor of Hobby Lobby, which refused on religious grounds to provide medical coverage for abortifacients (abortion inducing drugs), just in time to keep them from having to pay fines of $1.3 million a day, that were set to start July 1^st. Courts don’t always go wrong. Not yet.

SCOTUS on Marriage Part III: Outcomes of the Cases

Part I is on Definitions, Part II is on Arguments. Today's Part III is on Possible Outcomes

I have a poor record for predicting what the courts will do; I like to think positively, and believe all will work out. But after last year’s tortured ruling on Obamacare, all bets are off. I can’t predict. The oral arguments are almost certainly after the fact of the justices making their individual decision. They have already begun drafting their opinions. So all I can do is summarize the issues.

The two cases both deal with the definition of marriage, but ask different specific questions of law. The Prop 8 case is about whether the people of a state have a right to decide to keep the definition of marriage it has always had, or will have a redefinition forced on them by judges. The decision might avoid an actual decision by deciding the defenders of Prop 8 have no standing, which is a catch 22 situation. The people used the initiative process to override state-imposed changes against their will. Then the state refused to defend the people’s vote against the judges who overruled the people. To say no one but the state has standing leaves us asking, who can be the advocate of the people against the state?

Photo credit: npr.org

If the case is thrown out, it will only affect the state of California, with all the real issues still up in the air. But it also means the people have no recourse against a tyrannical state. Still, I think it’s unlikely the Supreme Court will use this case to announce a new unwritten “right” to same-sex “marriage.”

The DOMA case is about whether defending the long-standing definition of marriage is constitutional. The main question here is, when/how did the millennia-old definition of marriage become unconstitutional? A “right,” by definition, means God granted it, and it is just a matter of the state being prevented from infringing on that right.

If the court decides there is a right to marry (to be granted all legal and society honors) based on having a sexual relationship of one’s choice, why would it be constitutional to refuse to grant those same marriage honors to people who want to marry more than one at a time, or someone who is a close relative, or someone not alive, or someone nonhuman, or someone not of age? That is the slippery slope argument. The only defense to it is, “There is no slippery slope. We’re not talking about that; we’re only talking about the rights of same-sex couples.” And if you refuse to look at the argument, you submit yourself to being surprised by the slippery slope, which logically follows.

The argument against DOMA in the 90s was that it wasn’t necessary, because no one was even considering threatening the definition of marriage. Today’s arguments are equally disingenuous. Taking fidelity, permanence, and family establishment out of the definition of marriage, and pretending it has always been just a love thing, just honoring two people who have chosen to have an emotional connection for the time being, does not benefit society, and it certainly doesn’t leave marriage and family unharmed.

The DOMA decision hinges on rationality. Is there a rational reason to define marriage as it has always been defined if that prevents some people from enjoying the benefits of marriage? The threshold is actually quite low; if a single rational person can be found to have a single logical reason, then it is not irrational to uphold the law. The other side has to prove that there is no rationale for preventing marriage benefits from being extended to people who don’t currently meet the requirements for marriage.

It should be an easy decision, because family, fidelity, and permanence are all outcomes of the marriage contract that have an extraordinarily long history of benefit. In order to rule against DOMA, a very few states get deemed “rational” while the majority of people in the vast majority of states are deemed unreasonable—and bigoted hatemongers to boot.

But in political bodies (and the Supreme Court is unfortunately political, against design), simple facts get obscured behind other motivations. The opposition to the defense of marriage have enlisted a willing media in framing the argument as a civil right to marry—leaving out a great many details: homosexuals are free to (and frequently do) marry a person of the opposite sex like everyone else; there is no guarantee to anyone of marrying the “person of their choice” if the person they choose is already married or is a close relative, or is someone who doesn’t consent to marry them, or is someone below the age of consent or is mentally incapable of giving consent, and various other limitations.

I don’t think the cases available provide the possibility that the Supreme Court can come out with a declaration that marriage must be defined as it always has been not only by the federal government but also in all the states. I think upholding DOMA would only affect definitions within federal law, which leaves things the way they are now, with the possibility that individual states can define marriage differently in contracts within their states.

This is still problematic, because of the “full faith and credit clause.” Generally, contracts made in one state are upheld within the other US states. If you get married in Idaho, you don’t have to get remarried if you visit or move to Virginia. But, in the case of marriage, if a state grants all the rights and title of marriage to a same-sex couple, and that couple moves to a state that doesn’t recognize that change in the definition of marriage, would that second state be forced to recognize the contract? Thirty-one states have foreseen this scenario and have protected themselves, beyond statute, by declaring the long-standing definition of marriage in their state constitutions. Which makes it a question of sovereignty, so that a single state doesn’t hold power without representation over the people of all the other states.

Can same-sex couples move to these states and sue for recognition of their contract? Yes, and that does seem to be a strategy. Because of the deeply held beliefs—the strong rationale for marriage—it would seem reasonable for such couples to either stay where they have a recognized contract or assume that their contract is not binding. But instead of accepting that limitation for themselves, they press for all of society to change. So far, however, no case has made it through the lower courts to the point where a test case could reach the Supreme Court.

My hope for the Supreme Court is that they are swayed by the awareness that Roe v. Wade was not only bad law, it interfered with the state-by-state working out of a divisive issue. The court, I believe, will try to prevent such intrusion for now. I think they are likely to seek some middle-of-the-road still indecisive decision.

On Prop 8 I hope they will find in favor of the people’s law, but whichever way it goes, they are likely to clarify that the decision is only pertaining to the people of California and their initiative process.

On DOMA, I think they should uphold, because to do otherwise would be very disruptive to contract law and would be the most intrusive decision. Even if I’m wrong, I think they will try to find a way to prevent the decision from being a declaration of a new “civil right” for anyone to marry anyone of their choice.

As with Obamacare, we’re trying to predict the minds of Kennedy and Roberts. Kennedy tends to look consistently at civil rights fairness, so it’s hard to know whether he will succumb to the drumbeat argument of the opposition or consider the full meaning of the marriage contract. He is an unknown.

Rumor over the weekend was that Justice Roberts has a lesbian cousin who was sitting in his section during the hearing. I assume that report is intended to cause us to believe that merely having a cousin with an assumed opinion is enough to change the chief justice’s opinion on what the Constitution says. I hope that isn’t so, but I offer no guarantees. Roberts went way out of his way on Obamacare not to strike down the law. It seemed so out of character that people have speculated conspiracy theories, that the administration holds some piece of evidence (even if it’s something untrue and manufactured) over him as a threat, so he must not cross them. Maybe so, but it could be that he just personally seeks to avoid acting in a declarative way.

At any rate, it is unfortunate that the future of civilization is on a knife edge, at the mercy of nine unelected political appointees, two-thirds of whom are more likely to work toward their desired outcome rather than declare what the Constitution says. (May Thomas, Alito, and Scalia live long and healthy lives!)

On an ironic side note, on Sunday, March 24, about 300,000 protestors marched on the capital of France, in defiance of a bill sponsored by their president that would allow same-sex “marriage,” which has already passed the lower parliament. Even the people of France, where sex outside of marriage has been considered a cultural norm for centuries, are standing up against the imposition of the homosexual agenda.

SCOTUS on Marriage, Part II: The Gotcha Question

The SCOTUS heard oral arguments concerning the definition of marriage Tuesday and Wednesday of this week: Tuesday on California’s Prop 8 and Wednesday on the federal DOMA law. This is part II of my commentary on the discussion. On Wednesday, in Part I, I wrote on a couple of basic definitions. Today I’m looking at the Gotcha question, plus the “Voice of the Children” argument. It’s going to take a third post, coming Monday, to deal with the possible outcomes of the court cases.

The Gotcha Question

Here’s the Gotcha question: “How does a same-sex ‘marriage’ harm your heterosexual marriage?” The assumption is that there is no harm, so there is no answer. But there is harm, even if it isn’t blatantly obvious to the casual onlooker.

The current definition of marriage is a particular contract, binding the parties of the contract with the promise of fidelity, permanence, and protection of family. To change the definition removes those promises from even existing contracts.

Procreation: Separating the marriage contract from the act leading to procreation means nullifying and changing the contract so that there is no particular interest in family. This is important because, without interest in family, there’s pretty much no societal benefit from the contract that the state has an interest in. All benefits of marriage go to couples without the couples giving anything of value to society.

Fidelity: The change in contract also removes the promise of fidelity, because unfaithfulness in a same-sex relationship has no effect on the vulnerability of offspring and parents, in competition with a possible usurper of those protections. (Same-sex partners, incidentally, tend to be unfaithful at rates nearing 100%.) I had the promise of fidelity from my mate when I made the contract; if the court changes the definitions within the contract, it takes away from me this contractual promise.

Permanence: The establishment of permanent family in the original contract is also made vulnerable; since there is no dependent spouse or child produced by procreation within the marriage, there is no assumption of harm when a relationship ends. That is why government has had no interest in automatically sorting out division of property when same-sex couples part (which they do, historically, at rates approaching 100%). Similarly, government stays out when co-habiting unmarried heterosexual couples split.

So the change in definition means the new contract has no promise of fidelity, permanence, or family. How does that play out?

Suppose a father of several children, married to a woman for more than a decade, decides he prefers a different woman, and he ends the contract. The wife, who sacrificed considerably—health, career, energy, time, personal wealth—to procreation and raising the children, is left unprotected. She has no promise of alimony to make up for her sacrifice; she has no promise of custody if she doesn’t have as many resources as the father. She is told all can be taken from her, because there was no expectation of fidelity, permanence, or family in the original contract (even though she entered the contract with those promises expected).

Does the change in definition mean this woman’s relationship with her spouse will end in this disaster? No. But is the loss of protection from this threat real? Yes. She has been harmed.

Suppose a woman is married to a man for more than a decade, producing several children, but she has been unfaithful multiple times. She may be uncertain of the fatherhood of each of the children, or she may know the spouse is not the father. She gets the tax and insurance benefits plus honor of society nevertheless, simply because she continues having a sexual relationship with the spouse, but because there is no expectation of fidelity, the man has no right to expect that any children born to the woman were his offspring. Why marry in the first place, if he doesn’t even have that promise? And if he has no expectation of father-child relationship to the woman’s offspring, can there be an expectation that he provide for them? The man has been harmed by the change in contract, and so have the children.

No longer is it a contract requiring fidelity, permanence, and protections to family. It is now a contract implying only an announcement that two people choose to have some sort of sexual relationship, not necessarily exclusive, not necessarily permanent, and no interest in producing or protecting children—but the contract nevertheless requires society and government to give advantages and honors to the couple simply for their declaration of “love.”

Same-sex “marriage” makes it a different contract than it was. Courts will treat it as a different contract in all 1100+ laws relating to the contract. Laws surrounding marriage—property division, child custody, alimony, etc. will change, because the purpose of marriage and the state’s interest in it will have changed. Parents even lose the values attached to being a mother or father; those get substituted with neutral meaningless terms like “parent 1” or “caregiver.” Those who already have the original contract lose its meaning, and couples marrying in the future have no way to make the contract that heretofore has been available.

Voice of the Children Argument

One of the relatively new arguments voiced last Tuesday will probably be referred to as the “Voice of the Children” argument. The estimated thousands of children living with same-sex parents want their parents to have the same respect that married heterosexual parents have. This is interesting. Adults put children in the position of a family without a married mother and father, and then accuse, “How can you be so unfair to our children?” Instead of solving the problem by avoiding putting children in this deficient situation, they tell society it must accept the problem situation as equivalent to ideal as if that would solve the problem. Or, in other words, let’s decide to pretend it isn’t a problem, so that no one has to suffer the problem.

The question ought to be, what are children entitled to? They are entitled to being raised in a family with married mother and father; society should do all within its power to encourage that situation for each child. Wherever that isn’t possible, the situation for the child will be statistically likely to be deficient, and society will have to somehow use its social and economic capital to make up the deficiency as well as it can.

If society were actually interested in what is best for the child, then the child would be placed within a traditional family for adoption. But that is not being considered by anyone as an option, particularly for children born biologically to one of the same-sex parents. We as a society allow a great deal of freedom among individuals to make mistakes and choose their own way of dealing with them. While in past generations most children born to unwed mothers were voluntarily put up for adoption, today many more unwed mothers (above 90%) keep the child, thus depriving the child of a parent (also making adoption much more difficult for couples wishing to adopt, but that’s a discussion for another day). Many similar problems arise from divorce as well. We don’t take children away from divorcing parents to put them in other two-parent homes; the idea is abhorrent, even to the strongest defenders of the natural family.

With that option off the table, then society must simply spend its social capital tolerating the fact that some children will be raised without a mother and a father.

No matter how much the children are saying, “We don’t want our family to be seen as less ideal than families with a mother and father,” society can’t change facts. We sympathize for any child missing a father or mother, but we can’t magically say, “We’ll just say your situation doesn’t miss a father or mother, and then you won’t feel like you’re missing out.” When children demand, “I want! I want! I want!” sometimes the grown-up has to say, “I’m sorry, but that’s not something you can have.”

Supreme Court and the Definition of Marriage

I’ve written pretty thoroughly on the subject of protecting marriage. Here’s the basic list again:

• In Defense of Marriage
• Defining Marriage and Making Cream Sauce (I co-authored with Richard Wilkins)
• The Gay Marriage Fantasy
• Why Texas Will Vote to Protect Marriage—NoMatter What You Call Us
•        Devaluing Marriage and Family--Part I, Part II, Part III
   

So today, I’m just commenting on some of what we’re seeing in the Supreme Court’s hearing of oral arguments, Tuesday on the Prop 8 California case, and Wednesday on the federal DOMA law.

Some of the difficulty is the media wording of the issues, so I think I’ll do a little translation.

Banning is the wrong word. To ban something, the something must exist first. No one is “banning” same-sex “marriage”; they are defending the definition marriage has always had—since before the state existed to codify it in law. Technically, California claims same-sex “marriage” existed there and was then “banned,” but that’s disingenuous. The people of the state of California voted to keep the definition, and the legislature decided to ignore them, so, before the legislation went into effect, the people of the state put forth a proposition to change the constitution to retain the original definition of marriage and won by majority vote. And then judges flouted the decision, granting marriage licenses to people who didn’t qualify for said licenses, leading to the court cases at issue now.  So, every time you hear the word ban, know that it is the result of media manipulating public opinion.

“Same-sex marriage” is an oxymoron. Marriage, real marriage, concerns the legal and societal concern with what happens because of a specific sexual act, and only that act. To be blunt, a marriage is only consummated once the couple engages in the male sexual organ penetrating the female sexual organ, making possible egg fertilization. If a married couple engages in any other type of mutually voluntary sexual behavior, the state is simply uninterested. The reason is that this particular sex act is what leads to procreation, which is of vital interest to society, including the vulnerability caused by procreation, especially to children but also to mothers.

Oral arguments Tuesday touched on the procreation issue, but only awkwardly. What about couples who are infertile? What about couples marrying too late in life to procreate? (Justice Kagan asked about marriage after age 55, for example, apparently unaware that history offers many examples of people 55 or older becoming parents.) Those questions are not for the court to be concerned with; those are medical questions. Those couples can still marry, because they can still engage in the sex act. And they can establish permanent families going forward. Couples that fail to consummate the marriage can have the contract annulled, meaning that because they do not include the behavior of concern, their relationship does not qualify as marriage.

I don’t know why the simple question isn’t posed to same-sex couples: “Do you intend to engage in male/female sexual intercourse required for marriage? And how do you intend to do that without the appropriate body parts?” Their issue isn’t infertility. Mostly they are fertile. They are simply not engaging in the act with an appropriate partner to qualify for marriage.

There is not now, and has not been, any law “banning” homosexuals from marrying—when marrying means engaging in the singular male/female sex act that can lead to procreation, God willing. Homosexuals raising children have all either engaged in that act, or they have adopted a child produced through the coming together of someone else’s male and female seed. Even in the growing business of female homosexuals using in vitro fertilization, they can’t combine their egg with the egg of their partner; they have to have the semen from a male donor. There is no physiological way for this couple to produce offspring together. This basic fact of life ought to be obvious.

The supposed gotcha question of those seeking to redefine marriage is, “How does a same-sex ‘marriage’ harm your heterosexual marriage?” And the assumption is that there is no harm, so there is no answer. But that is incorrect.  There’s enough to say on that to wait for another post.