Not So Fast…

Monday, August 16, AD 2010

A Panel of the 9th Circuit has surprisingly issued a wise decision, deciding to allow Proposition 8 to remain in place while the 9th Circuit considers its constitutionality.

This was undoubtedly the right decision. It makes no sense to force a state to marry people while knowing that a later decision could invalidate all those marriages.

One hopes that this is the beginning of a trend in reversing Judge Walker, whose rulings in this case can best be described as what happens when judicial activism meets the dictatorship of relativism.

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12 Responses to Not So Fast…

  • Judge Walker’s performance in this case would warrant impeachment if we were living in a just world. His bias in this case has been clear from the beginning and totally shameless.

    http://www.nationalreview.com/bench-memos/243693/most-egregious-performance-ever-federal-district-judge-ed-whelan

  • Was this actually surprising? Wasn’t everyone expecting a stay? I was half expecting Judge Walker to stay his own decision.

  • I was half expecting Judge Walker to stay his own decision.

    Sucka.

  • I was, but I was hoping Walker would be impartial enough to grant the stay himself. I hadn’t been paying attention to the trial, but I think Don is right: this is a really poor performance by a judge, and I sincerely hope Christians who handle abortion trials learn from Walker’s example of how not to behave.

  • Isn’t it awesome how the people of the state can decide the matter, but its really up to a judge or a panel of judges to decide what’s good for them.

  • I’m really curious about how the law schools will spin this. There was so much effort spent “debunking the myth” that Left-leaning judges are “activist.” Some decisions though have got to be hard to re-cast. This is probably one of them.

  • I’m really curious about how the law schools will spin this. There was so much effort spent “debunking the myth” that Left-leaning judges are “activist.”

    Actually, that’s not been my experience. The current spin (and I got it today in the opening class for Con Law II, which is about the Bill of Rights) is that all judges today are activist, not just liberals. Basically, when Scalia (their favorite target) or any conservative attacks activism, they’re being hypocrites and point to the gun rights decisions, among others.

  • when Scalia (their favorite target) or any conservative attacks activism, they’re being hypocrites and point to the gun rights decisions, among others.

    Judge A thinks the phrase “the right to keep and bear arms shall not be infringed”, in a brief article which concerns that subject and the utility of the militia, refers to a personal right. Judge B fancies the phrase, “deny any person the equal protection of the laws” in an omnibus amendment granting freed slaves citizenship and cleaning up some other business from the civil war, requires county clerks to issue marriage licenses to pairs of dudes no matter what the various elected officials and general referenda say. Both are equally ‘activist’ to your classmates in Con Law II. Emphasis on ‘con’.

  • Good Morning Mr. Denton,

    1st – I hope your law school years are good and fruitful. Good luck and God bless.

    2nd – The narratives keep ranging back to what the Constitution IS – the whole Originalist vs. Living Constitutionalist debate. Since you are in law school, I’ll remind you that the Constitution is whatever your prof says it is. Work with their narrative and your grades will reflect your wisdom. (That is something I often found hard to do and my grades reflected that pig-headedness.)

  • In my experience, liberals embrace judicial activism. I think that’s a much more intellectually honest position than claiming that originalists are equally activist.

  • In my experience, liberals embrace judicial activism. I think that’s a much more intellectually honest position

    The notion that the phrases “The Judicial power shall extend to all cases under this Constitution” and “deny any person the equal protection of the laws” give you a roving mandate to arbitrarily annul any social policy you care to can be called many things. “Intellectually honest” is not one of them.

  • RR,

    How about a gravatar pic for your handle?

Culture War

Thursday, August 5, AD 2010

People justly tire of the term “culture war” and find themselves asking, like the philosopher Rodney King, “Can’t we all just get along?”

And yet watching the disparate reactions to yesterday’s Federal Court ruling overturning California’s Proposition 8 (for now) it struck me that the culture war terminology is quite apt. What is termed the culture was is essentially a zero sum game over which of two roughly equally numerous groups will be allowed to define the dominant understandings of culture and society in our country. by taking this to the federal level, same sex marriage advocates have made it clear that no degree of regional acceptance is satisfactory — their understanding of the nature of marriage must be the single dominant understanding enforced throughout the country, and those with a traditional understanding of marriage must be the ones who find themselves aliens within their country. And, presumably, is same sex marriage advocates lose, they will in turn consider themselves aliens within the country. Given that it is the most basic units and purposes of society which are in dispute, it seems hard to see how it can be any other way. And while the dispute is to an extent regional, it is much more so philosophical and ideological, making the culture war more resemble the Spanish Civil War than the American. Every city and region has representatives of both sides.

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19 Responses to Culture War

  • To your point about it being impossible to make the traditionalist case: I thought Frank Beckwith’s following comment over at What’s Wrong With the World was spot on:

    Political liberalism was invented in the mid-1980s in order to provide a theoretical foundation that can exclude religiously-informed policy proposals while seeming to defend religious liberty and citizen participation. There had, of course, always been many liberalisms, including the Lockean, Kantian, Millean, Hobbsean, and Roussean varieties. But each suffered from the same problem: each presupposed a particular philosophical anthropology as the correct account of humanity. This was a problem because popular liberalism suggested neutrality on matters of worldview. So, you could not very well say that the state should be neutral on such matters while requiring it to embrace a particular one. Social conservatives understood this since the mid-1950s, as seen in what Bill Buckley called “the great liberal dilemma.” But with the ascendancy of the religious right and its insistence that “liberalism” is not as neutral as its proponents claim–that it too tries to answer the same questions that traditional religions answer–folks like Rawls needed a new way to defend liberalism in a pluralistic society that was both morally required but did not depend on a particular metaphysics. Presto, we get “political liberalism,” and with its numerous defenders including Rawls, Gaus (who is more of a libertarian), Nagel, and to a certain extent Dworkin.

    So, instead of explicitly defending metaphysical liberalism, we get political liberalism with allegedly none of the metaphysical commitments. But, strangely, on every issue about which metaphysical liberalism would take a stand–e.g., abortion, affirmative action, same-sex marriage, etc.–political liberalism gets the exact same results. Wow, what a coincidence! But the benefit of political liberalism is you can rule your opponents’ views as a priori violations of political liberalism while saying that their views are still “rational.” This means you get to sound like you respect pluralism, diversity, and the rationality of your opponents’ point of view while shutting them out of the debate on “principled grounds.”

    This is why on the issue of homosexual conduct, those that are critical of it for moral reasons cannot be considered reasonable actors who simply disagree with others on the issue. They must be irrational. For if they are rational–that is, if there views are not unreasonable to hold–then the state cannot, according to the canons of liberalism, force these citizens to acquiesce in their public and private lives. But this means that same-sex unions would not be treated equally, since political liberalism would grant the legitimacy of those who think homosexual acts are immoral. Consequently, the bigot charge is so fierce and not well-argued. It is meant to intimidate and silence, not persuade or convince. For, again, to suggest the position is arguable is to grant it legitimacy, and that simply cannot be allowed.

    So, despite Rawls’ wonderful intention to provide a theoretical grounding on which people with differing points of view on worldview matters can dialogue in a climate of mutual respect and understanding, he failed miserably. For what he in fact did was give to either side in the culture war, the ultimate weapon: declare the other side “unreasonable,” for once that sticks the game is over and there is no need to treat the other with respect or equal regard.

  • Well, apparently the history standards used in CA are even worse than I thought if Judge Walker can say with a straight face that historically there were no restrictions on marriage based on gender and that marriage was traditionally a matter of mutual consent. Heck in many parts of the world today, mutual consent STILL has nothing to do with marriage. I bet he would die before giving the Catholic Church credit with introducing consent as a feature of marriage.

    And since when does marriage have nothing to do with procreation? Many states require blood tests for Ruebella, which has everything to do with preventing birth defects in the future children of the marriage. (They don’t excuse you from the blood test just because you say you don’t plan on having children.)

    Also, inheritance law is very much intertwined with marriage both now and historically. But hey, with after death conceptions now due to IVF technology, maybe our culture should just declare children chattel and stop trying to pretend everything that the adults want magically is good for the children. We can just declare it so and move on with clear consciences!

  • Why should they (gays) be happy? They may as well be miserable like the rest fo us. Farce/OFF

    Did the judge rule YOU cannot have religious morailty in LAW? I like that part. Get the welfare (Catholic Social Justice) state off our backs.

    To your point: J. M. Barrie, “God gave us memory so that we could have roses in December.”

  • The following comment of mine was censored by the Huffington Post and taken off the site. It stated, “This comment was removed in accordance with HuffPost’s moderation guidelines.” I was totally taken aback. My words were neither offensive or in bad taste in anyway. Here is what I wrote:

    When anyone is vocal against gay marriage and homosexuality, supporters of gay rights like to label them as intolerant, prejudice and ignorant. I don’t consider myself any of the three. I was taught that we are all part of the human race and, therefore, no one is better than anyone else, regardless of race, class or religion. I feel I have always been on the right side, fighting for the poor, the minority, etc. But being gay is a desire and not a right.
    Whatever people do in the privacy of their homes is their business. It is not anyone’s place on this earth to judge others’ actions and desires. I know people who are gay, and I treat them no differently, than I do anybody else. Everyone should be free from ridicule and attack, but to go so far as to give rights to an abnormal desire that contradicts nature since the beginning of time is wrong and can only lead to an untested and precarious road. You don’t have to be religious or a moralist to know that what isn’t natural shouldn’t be. Gay people should neither be attacked nor encouraged, but helped and prayed for. This ruling is misguided because the law has no place in sanctioning unnatural and defective desires and acts.

  • Well now you’ve said several offensive things. Calling homosexuality a “desire” and not a “right”. Calling it an “abnormal desire that contradicts nature” and labelling it “wrong.” Finally you call for us to “pray” for them. You are engaging in hate speech you know.

  • by taking this to the federal level, same sex marriage advocates have made it clear that no degree of regional acceptance is satisfactory — their understanding of the nature of marriage must be the single dominant understanding enforced throughout the country, and those with a traditional understanding of marriage must be the ones who find themselves aliens within their country

    well, obviously that was the goal all along. But they would not have gone the federal route if they could have won state by state. when the people are asked, they emphatically say no.

    Today, gender is not
    relevant to the state in determining spouses’ obligations to each other and to their dependents. Relative gender composition aside, same-sex couples are situated identically to opposite-sex couples in terms of their ability to perform the rights and obligations of marriage under California law.

    where the hell does he come up with this?

    It is not anyone’s place on this earth to judge others’ actions and desires.

    I would have to quibble with this. It is precisely our place to judge actions and desires. We do that all the time – it’s called enforcing the law. The judge himself did it in this case by judging that those whose actions/desires are that same sex couples should not be recognized as married are wrong.

    It is not our place to judge the eternal destination of someone’s soul because of those actions and desires.

  • The right to marry has been historically and remains the right to choose a spouse and, with mutual consent, join together and form a household

    Great. So when does polygamy kick in? I chose a spouse in 2010, then I chose another spouse in 2011, then I chose another in 2012….

    Someone owes the Mormons a BIG time apology!

  • If those words were offensive, then most comments would be pulled, since I have seen a lot worse on the web. We have something in this country called freedom of speech. You may not agree with me, but I kept it clean. I guess they just thought my simple words would sway others.

  • I was being sarcastic. I actually agree with you.

  • But I suspect others would not be sarcastic if they said such to you. That’s why your post was pulled. Soon you may not be able to say it publicly.

  • Ruth,

    It’s pure and simple censorship.

    You are evil if you disagree with them. At least they are not planning to destroy you, yet.

  • Jess,

    …maybe our culture should just declare children chattel…

    Welcome to the Roman Republic circa 150 BC.

    Where children were actually described as property of the father (they were a strictly paternally driven society back then).

    So with that, progressives are advocating for a regression towards olde tyme Roman Law.

  • Dear Judge: repeat after me: The state did not create marriage. The state does not own marriage. The state receives marriage as a cultural institution. The state is not the culture, it serves the culture. The state is a servant obligated to respect and foster the culture’s pre-existing and more fundamental institutions. Marriage is a cultural institution constituting relations between a man and a woman, period.

  • Tony-
    Judge Walker would take your framework of thinking about marriage and say that homosexual unions are apart of the contemporary culture and that Prop 8 was the state trying to own marriage.

    But of course, I get what you are saying and you are correct: marriage is a pre-political, natural institution; the state has no competency to alter it.

    There is no chance for common ground on this issue: as Elizabeth Anscombe noted decades ago, this battle was lost when artificial contraception became normal.

    Time to get out your MacIntyre, reread it and weep.

  • Also, Frank Beckwith noted a key logical flaw in Walker’s opinion:

    “Oddly, the judge claims that the belief that heterosexual monogamy is better than homosexual unions cannot be one of the reasons. But in that case, the judge begs the question, since that is precisely why we should privilege male-female marriage. So, it turns out male-female marriage is unconstitutional become it is male-female marriage. That’s called begging the question.”

  • For the sake of a view from the other side, here’s a post by a Christian who voted against Prop 8 & now regrets it…good illustration of how constant media exposure can muddle thinking:

    http://www.elizabethesther.com/threes_a_crowd/2010/08/why-i-regret-voting-yes-on-prop-8.html#comment-6a00d83451d95b69e2013486109b9c970c

  • Fellow Catholics, we must beat on our own chests. Judge Walker’s reasoning is largely unassailable and may well be upheld by the Supreme Court, perhaps even with the votes of some Catholic justices. The case in favor of Prop 8 was prepared weakly, and the defendant (Gov. Schwarzenegger) didn’t really want to fight it. Both Schwarzenegger and the Attorney General of CA have since come out in support of same-sex marriage. Nobody saw that the issue shouldn’t be presented as about the nature of marriage but as about the nature of sex. It should have been built on “Male and female He created them” (Gen 1:26), by arguing that individuals (or, for Catholics, persons) by nature belong to one of two sexes and that there is no artificially chosen “gender”. Catholics appear to be about the only ones left who have an interest in pursuing the case. Will we even be strong enough to grasp the last and minute chance before the Supreme Court? Now or never. Unified and strong leadership by our bishops is necessary, as is support by our universities, media, and best legal minds.

  • Do any of you know anyone who is gay? Do any of you know any gay couples? There are many, many, gay couples in committed relationships who simply want the same benefits under the law. Spousal inheritance, survivor benefits, next of kin rights at the hospital, visitation rights. Have any of you read the science on homosexuality? It is not a choice, and it is natural. Homosexuality is present in nature in many different animal species. Homosexual people are physiologically different than straight people. 10% of all populations are historically gay, and not something people can control and not something you should discriminate against in civil law. It is the American Law we are talking about here. Now you can decide.. do you want to live in a Free country, where we are all able to pursue life, liberty and happiness, or would you rather your homosexual brothers and sisters just continue to commit suicide for fear of rejection by their families, be forced from their homes when their partners of sixty years pass away and their relatives come and take everything, or lose rights to children they raised in a break-up? Jesus Christ never spoke of homosexuality, and by the majority of theologians he was the radical liberal of his day. Learn to live and let live. The agreement two people have to each other under the law affects none but those two people. In a pluralistic, free society we have to learn that the law applies to EVERYONE, not just the majority. A man and a woman can still get married as they always could have so tell me how does this impact them? This is about equal protection under U.S. law for all families in this country. If you want the rule of religion to to be the basis of civil law in the country you live in, please go look at Muslim countries that run on Sharia law as an example of how backwards it could become. Separation of Church and state, as well as Freedom of Religion are a beautiful thing. Now, if you want to really focus on ridding the world of sexual deviance, take a look at your own “celibate”, child molesting priests and the Popes who shelter them.

  • David,

    There is an unselfconscious irony in someone showing up to demand tolerance, while loudly displaying his own intolerance of anyone with a view different from his own. A great deal of what you say is ignorant, or untrue, but what comes through very clearly is that you absolutely and unconditionally despise anyone who thinks different from you. How you expect this to be persuasive from those who differ from you because they have thought long and deeply about their beliefs is beyond me.

WJBA? In 2010 Would Jesus (Along With His Apostles & Saints) Be Arrested For Hate Speech?

Wednesday, August 4, AD 2010

A few short years ago the mere suggestion that the Son of God, His Apostles and Saints would face arrest for hate speech would have seemed absolutely ludicrous. However, events have spiraled out of control across the western world. In his opinion that strikes down California’s recently voter approved marriage law, Judge Vaughn Walker wrote that those who speak in the name of religion to put across their views that same sex marriage is wrong are “harmful to gays and lesbians.”

Across Europe and Canada, faithful Christians speaking out for traditional marriage face the threat of being hauled off to court for citing the teachings of the Catholic Church and various Evangelical Churches. Where will this all end? Some see a great persecution coming against the Christian faithful. Though possible, one need remember that the Christian faith always grew when persecuted.

The Catholic Church has long taught that some individuals have an inclination toward same sex attraction; they are to be loved as all people are to be loved. The Church teaches that these feelings are not to be acted upon. The Church goes on to teach that all individuals are given a cross to carry in this world and for those who are same sex attracted; this is their cross. An organization exists for those who are same sex attracted called COURAGE. It has many chapters and members.

Recently a profile was done in The New York Times on same sex attracted Eve Tushnet, the Ivy League educated Catholic daughter of Harvard Law professors. She has chronicled her growth in Catholicism and the logic of the Church’s teachings on sexuality. For years the Catholic Church took some heat from some quarters of Christianity for not stating that anyone who is same sex attracted would be going to hell. The Church now is facing a maelstrom of vitriol from those who claim the Church hates homosexuals.

For the Church to change her teachings would be to deny not only what Christ said (Matthew 11:20-24,) but his Apostles, not to mention Saint Paul’s lengthy discourse on the subject (Romans 1:26-28, 1 Corinthians 6:9-10.)  In addition to the Apostles and saints, there is a rich history of saints writing on the subject, particularly the Early Church Fathers like Saint Augustine, St Justin Martyr, St. Basil and St John Chrysostom as well as Church intellectuals like St Thomas Aquinas, Saint Albert the Great (the greatest scientist of his time,) along with mystics like St Catherine of Sienna to name but a few. To say that the greatest minds of their respective eras were all wrong is simply breathtaking.

Many who disagree with the Church tend to forget that homosexuality was much more common and approved of by the Roman government in the early Christian era than it is even in 2010. Many in the upper echelons of Greek and Roman culture experimented with all sorts of sexual practices. It would have been far easier for Jesus, the apostles, saints and popes to approve of this conduct than it would to disapprove of it. Christianity might have grown at a faster pace. However, there was a reason for this swimming against the tide, and the faithful accepted it.

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4 Responses to WJBA? In 2010 Would Jesus (Along With His Apostles & Saints) Be Arrested For Hate Speech?

  • Great column as usual, Dave. It just blows my mind that our nation is no longer a republic of, for and by the people but an elite and arrogant oligarchy that is unleashing one perverted social experiment after another on us.

    The far left have the nerve to needle the conservatives for wanting to have less government yet have government restrict marriage. Quite the contrary, we want to be able to decide how our society should function, not have the government do so.

    It’s a shame that the voters in my state of California were robbed once again, but we can still hope for the Supreme Court to save the day. In the meantime, this should serve as a wakeup call for the voters, especially those in the 45 states who have kept marriage to one man and one woman, to vote the radicals out in the fall and make sure the Democrats never control government again as long as the militant secularists who are ruining this nation continue to call the shots for the party.

  • This is almost a grand slam!

    This is government hate speech against, and injurious to, Christians, Jews and Muslims.

    Oh, that’s okay!?

    Never mind.

    Thanks for voting for them dems.

  • Prepare for the worst. There is little doubt that in the near future Christians will be arrested and imprisoned by the American Socialist State if they continue to preach the gospel and traditional morality. The American politicians have created their long desired Atheistic State which will have no tolerance for believers. Prepare for the dark days of persecution but the good news is that it will separate the wheat from the shaff and the sheep from the goats.

  • But Jesus and the Apostles were arrested and even put to death for their speech.

    When DeGaulle was reproached for not taking more care against assassination, he replied: “It comes with the job”.

It's About the Children. Seriously.

Wednesday, August 4, AD 2010

I must confess that today’s judicial ruling out of California which overturned Proposition 8 has riled me up, suprisingly so. I heard about the ruling while listening to the livestream of a tech podcast in which one of the three podcasters is a lesbian (previously “married” in CA) and the other two (middle-aged married men) evidently supported the decision. The ease with which they threw out bromides (“finally, equality!”) bothered me, primarily because it revealed two things: 1. a group of intelligent people couldn’t grasp that there might be real objections to same sex “marriage”, and 2. as I’ve noted previously, too many (probably most) Americans simply don’t understand the essential nature of marriage. Simply put, the state’s interest isn’t strong feelings or commitment… it’s children. And — to state the obvious — a homosexual relationship isn’t structured towards procreation the way marriage is.

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29 Responses to It's About the Children. Seriously.

  • Well said.

  • Exactly. Americans, even conservative Protestants, have removed children from marriage. Without a procreative intent, admittedly, there is little reason to ban gay marriage. Or incest for that matter.

  • Americans?

    Westerners. America still has the highest birth rate in the Western world, and Utah has the highest birth rate out of all the states.

    Supposedly “family friendly” Europe cut children out of the picture a long time ago. All of the welfare provisions, reduced work weeks, paid maternity/paternity leave didn’t do a damned thing to reinforce families or birth rates.

    This is because Europe not only removed children from the marriage, but God from their lives and culture. Mormon Utah thrives for exactly the opposite reason. When will Catholics get it?

  • Actually, welfare did help increase the birth rate in Europe. The Scandinavian countries have the highest birth rates in Western Europe.

  • How would things look if marriage were dead? Out-of-wedlock births, acceptance of any cohabitation arrangement, the presumption that any relationship in non-binding…exactly what we have today. Marriage is dead as a norm in the West. There are only pockets and subcultures that preserve it.

    We talk about the “war on Christmas”. Christmas has been stripped of its old meaning and given a new purpose; a few of its traditions are unthinkingly continued. By the time the courts started enforcing “holiday pageants” in public schools, the war was long lost. That’s exactly what’s happened to marriage.

    Maybe my blood sugar is low or something, because even I am not usually this pessimistic. I’m just not seeing any reason to be encouraged.

  • Marriage is dead as a norm in the West.

    Yes, this is what I’ve been saying about the SSM debate all along. To those who ask, “How is SSM going to harm your (traditional) marriage?” I say, “It’s not — the damage has already been done. I just don’t see the reason to codify the death of marriage in law.”

  • Marriage is certainly in disrepair in the west. Many forces contributed to that, but the disentanglement of sex, children and marriage via modern birth control options is certainly a key part of it, resulting in the normalization of premarital sex, cohabitation, divorce, serial monogamy, etc. That said infidelity (i.e., extramarital sex) is still largely unaccepted in the US. Marriage may be in the ICU, but it is not dead yet.

  • Pingback: Supporting Gay Marriage: It’s Not About the Children. Seriously. « Agree to Disagree
  • The trolls are out.

  • restrainedradical wrote Thursday, August 5, 2010 A.D. at 8:29 am
    “Actually, welfare did help increase the birth rate in Europe. The Scandinavian countries have the highest birth rates in Western Europe”.

    The birth rate in Sweden is 1.67 children born/woman (2010 est.), i.e., less than replacement. Much of this is probably due to immigrant populations.

  • It seems to me that there is an assumption that the U.S. is a fine moral country.
    The opposite seems to be true. The number of child murders continues to increase.
    Poverty is widespread despite “Wars on Poverty” [because of?].
    The immigration question continues to fester. {On what moral basis can immigrants be denied entry?].
    The continued base treatment of Indians reeks to heaven.
    Justice Ginsberg speaks of “undesirable populations”.
    Multi-skillionaires give much money to killing babies in this country and abroad.
    Pornography becomes more and more widespread like a plague.
    Actors are treated as moral gurus, because their faces are familiar, not because they know how to behave.
    To put it succinctly: what is it in the U.S. which gives it any claim to be a light unto the nations?

  • I’m not sure I understand the argument. People who don’t procreate shouldn’t get married? Then where are the rallies against childless marriages? Why aren’t we banning people whose disabilities prevent them from having children from marrying? Or the elderly? Why aren’t we protecting the procreative institution of marriage from these barren impostors? And what about adoption? Since adoption by same-sex couples would challenge your argument, you must be against that, too. In which case, shouldn’t we stop straight couples from adopting, too? Those children may be in need of care, but of course the bigger need is for people to have their own babies. Please help me understand how we can include the disabled, the elderly, adoptive parents and those who are childless by choice into the Prop 8 campaign, because clearly we’re leaving a lot of people out.

  • Thanks for the comment, Maisha. You raise a common but good question with regard to our position, and it’s one that certainly seems to follow from my post. I somewhat oversimplified the argument last night, but in so doing left the door open for your objection. Let me see if I can offer at least a beginning of a response.

    Our position is that marriage is an institution in which a man and a woman come together with a desire to grow more deeply in love and with an openness to children, *even if children are for some reason impossible for them*. For us, the act of marital love — sexual union — is itself ordered towards procreation, even if in at any particular time procreation is impossible (perhaps due to infertility, because the woman is not in the fertile stage of her cycle, or whatever). So in the case of an elderly couple beyond childbearing years, the sexual union remains structurally oriented towards procreation.

    Such is obviously not the case for the same sex couple, however: same sexual acts of their nature cannot be procreative, while — all things being equal — heterosexual acts are always structurally procreative.

    That’s the beginning of a response… let me know where I’m unclear, and I’ll try to clarify.

  • When I comment on subjects like this my post is in danger of being deleted, which is ok, I have to answer to God for me, not whomever does the deleting.

    That being said:

    With the Catholic Church, the children are really just pawns. The real battle is keeping the pews full, I think for the power that gives the Church. I would like to think otherwise but I really do not, based upon personal experience.

    When divorce happens, the Church does and says nothing, to heal a marriage, when it is clear to the Church, as they have all the evidence they need in nullity cases, that a marriage has simply been abandoned and the abandoner has taken the spoils, including the children.

    Rather, should not individual priests and bishops in authority, address the situations, especially when these are presented to the Church for nullity investigations and work, tirelessly, pastorally and with canonical strictures, to restore marital union? Especially so when nullity is shown NOT to exist?

    No such thing happens, at all!

    No, Chris. I do not agree it is about the children. It is about power and control, although it should not be that way.

    If you must delete this, go ahead. I did not mean any disrespect by it. I just commented on my personal experience and from what I have heard from others, who have been through it.

    Regarding marriage, I believe, the chemical inability to make the sperm/egg do not invalidate, the inability to “perform the act” necessary for procreation, either physiologically or psychologically, is what validity and hence, real marriage, hinges on, provided the people are free of all other impediments.

  • If I’m following you correctly, Karl, two comments come to mind.

    First, there are programs present in the Church which try to heal broken/dying/weak marriages… Retrouvaille comes to mind.

    Second, I’m not sure what you think clerics can do to get two people back together who refuse to do so.

    Can you elaborate or clarify?

  • Going there would hijack the topic. I simply wanted to infuse my personal experience into my comment.

    I have never, once, seen the slightest concern for the scandal and abuse our five children have experienced by any of the priests or bishops who were supposed to pastor them. To this day the scandal is encouraged.

    Our acceptance of divorce has prepared the groundwork for this “dumbingdown” of marriage.

    It is about the children and their souls, that is clear, but I do not see the Catholic Church as having the moral high ground. Not over divorce, Chris.

    God is teaching his Church, if it will listen to spouses like myself and others who have seen its evil deeds, to repent and to LISTEN. Bur for twenty years, the ears of the Church have been sealed, in my personal experience.

    I hope, whatever it takes to break the back of the dead consciences of the Catholic intelligencia, lay and clerical, is done. They do not listen. They listen to “experts” they DONOT

  • LISTEN to their victims.

  • The Church must defend marriage, period, not selectively in the face of a homosexual challenge.

    It must cease allowing its teachers to stress the “benign” nature of divorce. It must do so with strong canonical sanctions. It must hold to account, with formal canonical sanctions those who abandon marriages, particularly when they do not seek counsel from the bishop or when they abuse those few specified canonically allowed circumstances when separation is allowed.
    Wrongful divorce must not be unaddressed, in public and those who refuse, without substantive, serious reasons, to work, endlessly if necessary, at reconciliation, especially if there are children involved, should be formally and very much in public, be admonished and in short order, formally excommunicated, if the refusal to work toward healing the marriage continues. All those who cooperate, formally, with the support of the unrepentant, should similarly be held to account, with more vigor if they are a religious or in any position of authority/importance in the Church.

    The Church has lost all credibiliy due to its generations of laxity regarding marriage. This is constantly used against the Church and justifiably so.

    Unless this is addressed and addressed, last year, the Church is the hypocrite it is so often accused of being.

    May God have mercy on His, very unfaithful Bride. It is those of us who are struggling to be faithful to both our spouses and our faith, who God requires
    His Bride to listen to. The Pope and the rest of the Catholic clergy need to understand how much harm they do each day our cries are left unanswered with almost anything but disdain, from those who should know better.

  • Karl,
    When you write that “the Church” has been moving in the direction of accepting divorce, I believe you should modify that by saying many [most?] priests and bishops have been moving in this direction. And it is, as you rightly note, part and parcel of the sexual scandals. Once start hedging – even in the smallest manner – on matters of Church teaching, the hedging simply grows.
    The hierarchy is mealy mouthed when it comes to the use of the pill. Most of the pills are abortifacient. All of them sterilize. How often do priests and bishops note this? How often do they remind the faithful that they are committing a mortal sin by the use of the pill?
    But I believe there is a mistaken notion that our bishops, as such, are a saintly lot. They are not. You have but to read a bit of the history of the episcopacy to realize that bishops do not contribute much to the list of saints, to those we are enjoined to emulate. They are for some reason a timid lot.

  • Unfortunately too true. We must remember that the priesthood and episcopacy are charisms, gifts for the good of the Church, and not holiness. A mother at home raising her children may have a far greater place in heaven than many a bishop.

  • How is SSM going to harm your (traditional) marriage?

    That is really the incorrect question – it should be “How is SSM going to strengthen marriage as an institution?”

    And the answer is, it is not. It will only further hide the now barely recognized fact that the proper end of intercourse is procreation.

  • I think there’s a real serious question whether ANY church in the USA takes marriage seriously–with (ironically) the possible exception of the Mormons. Among Catholics, even those who cannot remember the number of the commandments, let alone the content of the list, can tell you that when we want to divorce and remarry in church, we just get an annulment on some (frequently bogus) “psychological” ground. This happens no matter how long the supposedly invalid marriage has lasted or how many children it produced. This last point is especially important; the annulment regime now in force is saying that it is NOT important to stay married “for the children’s sake.”

  • ron chandonia, I agree that there have been serious abuses in Catholic Church annulments. But the idea of an annulment does not hinge on whether the apparent marriage lasted many years, nor on how many kids there are, nor on whether it is better for the kids’ sake to stay together. If a couple never did get married to begin with, despite appearances, then it means that they have been living an error for however long the apparent marriage has been going on, whether short or long. I accept that a long-lasting arrangement suggests that there must have been a real commitment to permanence, but there are other commitments needed for the marriage to have taken place to begin with.

    I know a couple who got married 20 years ago, and got an annulment 2 years ago: the guy had been a pornography addict and sexual deviant the entire period. He was incapable of a real commitment to marital fidelity at the time of the wedding, because he was addicted to porn.

    The Church usually states that if a couple has kids, they both have a deep, serious obligation to see to their welfare even if a divorce or annulment occurs. How can it be better for the kids for the Church and society to pretend that a marriage took place when it didn’t. I should think, generally, that a couple with young kids, who discover that they never did truly marry, ought to ask themselves whether they might have a moral obligation to actually make real the apparent marriage that they had been living in action, for the sake of the kids. But of course, nobody discovers this without a marital breakdown, and at that point it is often difficult to establish that it really would be better for the kids if their mom and dad got married even when they hate each other.

    Given that at least 30% of heterosexuals don’t seem to have a grave problem with the very idea of homosexual marriage, it is probable that many, many people don’t understand marriage enough to actually form a marriage bond with another person. Given that, it should not be surprising that many annulments are granted correctly.

  • May one not also ask what is the difference between gay “marriages” [sodomy] and marriages in which the female uses the pill to sterilize herself? Marriage is not even chiefly for procreation. Procreation is an added blessing. To reject that blessing is to reject the Almighty.

    Consider also the vow “until death”. As Harry Truman remarked “if a man will not keep his word to his wife, to whom will he keep it”? The Church does not prohibit divorce when it is but separation. It prohibits divorce – it points out the breaking of the vow – for “remarriage”.

  • Gabriel,
    It is my understanding that the Church does not so much prohibit divorce as simply not recognize it. Indeed, while legal separations may be favored over divorce as such, I believe that the Church understands that divorce under civil law is often necessary in order to ensure protection of the weak — usually but not always the wife or children. Consequently, what is not permitted is remarriage (absent an annulment of course), since the first (without an annulment) the marital sacrament remains in place and remarriage constitutes adultary.

    Thanks for the Truman quote. I was unaware of it.

  • How mislead and scandalous these comments are.

    How easily you have swallowed the Kool Aid of divorce to think that it is anything but condemned.

    Do you reacall it says…..God Hates Divorce. How easily man has rejected the expressed Will of God and searches for rationalizations for his sins.

    Watch and learn as society and the Catholic Church decay for their self-serving attitudes, especially towards marriage. The reconing will come.

  • Karl,
    Emoting about Kool Aid is not productive. While I’m hardly an advocate of divorce, and it is certainly true that the rate of broken marriages is scandalous, the fact is that obtaining a divorce in and of itself is not understood by the Church to be a sin. Indeed, the Church views a civil separation and a civil divorce indentically. Neither has any effect whatsoever on the marital Sacrament. The Church recognizes that the parties are not morally enjoined from selecting whichever legal route leads to greater justice under our civil law system. This is especially important in the case of serious abuse. Neither legal approach, however, permits “re-marriage” in the Christian sense, even if civil divorce does so under civil law. The sin occurs if a person bound by the marital sacrament to his spouse remarries or otherwise has relations with another regardless whether the married couple are separated, divorced, or neither. Note the important fact that the Church does not view civil divorce as disturbing the status of a Christian marriage.
    Of course, as I noted the rate of divorce is evidence of deep and disturbing problems within our society. The wounds, especially to children, are incalculable. But divorce is a symptom of sin, not the sin itself. This is pretty straightforward Church teaching.

  • Karl,
    Catechism 2383:
    “The Church teaches that the separation of spouses while maintaining the marriage bond can be legitimate in certain cases. The Catechism states: “If civil divorce remains the only possible way of ensuring certain legal rights, the care of the children, or the protection of inheritance, it can be tolerated and does not constitute a moral offense.”

    Which is to say “divorce” is a civil separation, not a breaking of the marriage vow.

Proposition 8 Struck Down, For The Time Being

Wednesday, August 4, AD 2010

By now I’m sure you all know that Proposition 8 was struck down by a federal judge. Who knows what will happen on appeal. There is much to be said, but I want to focus on one narrow and possibly tangential point. This phrase from the judge’s ruling, a phrase being reposted on facebook in many statuses:

“A private moral view that Same-sex couples are inferior to opposite-sex couples is not a proper basis for legislation.”

The absurdity of that sentence really struck me. There was nothing “private” about the view of the “superiority” of hetereosexual couples. It has been carried on through generations of communities and in the present day was represented by 52% of Californians. How a popular decision that represented thousands of years of ethical thinking and concern for the family became a private morality is baffling.

More troubling is the implication of the judge that a “moral view” is not a proper basis for legislation. Since when has this been the case? Our laws on pedophilia, minimum wage, health care, torture, human rights, etc. are based at least on part on “moral views,” views that in some respects may be just as if not more private than the ones the judge rejects today.

If morality is not a basis for legislation, what on earth is? Morality guides us in making decisions; without a moral or ethical compass (or perhaps even without a religious one) there is no basis for legislation to be made. Laws are supposed to help make society run better, but there is no way to make society run better unless you have a notion of what a “better society” looks like, and you don’t get to that notion without morality.

State recognition of homosexual marriage is one thing, but this ruling attacks the foundation of our government. Morality must have a place in the public sphere and must be one of the foremost foundations of legislation.

To be sure, the judge is simply smoke-screening for the fact that he is imposing his own standards of morality. But the fact that his statement rejecting a moral basis for legislation is being so celebrated should worry all Americans.

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6 Responses to Proposition 8 Struck Down, For The Time Being

  • I heard several commentators on the radio using this language today. We need to put a stop to this “inferior” vs. “superior” language altogether. It is irrelevant to the question at hand and just pulls on the emotional strings of those on the fence who are concerned about “equality.”

    Gay marriages are not some form of marriage which we think is an “inferior form” to the “superior form” between heterosexuals. Gay marriage quite simply isn’t a “form” of marriage at all. It doesn’t exist. To let the pro-gay-marriage crowd frame it in these emotional, egalatarian-based terms is to get off track and play into their hands.

  • From the ruling:

    “Race and gender restrictions shaped marriage during eras of race and gender inequality, but such restrictions were never part of the historical core of the institution of marriage….. Gender no longer forms an essential part of marriage…”

    This passage from the ruling is the real core of this debate. Gender historically had and currently has nothing to do with the core of marriage? What an astonishingly bold and bald lie. That’s the level of unreality we are up against.

  • This is stupidity on afterburner. I’m actually ashamed of our judicial system; these judges are a joke. Between this and the “sweet mystery of life” passage, the rule of law is effectively dead. Pack up and go home.

    I suggest as a form of mass civil disobedience that all Christians commit a petty crime and use this decision and Casey as a defense. “The heart of liberty is to define one’s own concept of existence, and morality is no basis for legislation.” Our robed masters said so.

    There is no such thing as law free from morality; there is no metaphysically neutral politics. I have no sense for what greater good this progressive-liberal culture is aiming; what is its summum bonum? At least with Christianity, one knows where one stands. But where will this nonsense end? What moral outrage will we be forced to accept next year and the year after that?

    Not that I would do it, but I’m sort of starting to see why people burn American flags. I’m disgusted by this.

  • Really good article and pertinent to the points made here. I met the author, Thomas Messner, in my travels a few weeks ago, really smart with a law degree. Forgive me if it has already been discussed/posted here.

  • Given that the Dems control the Senate, is there any point to pushing for a removal from office of this judge? At this time the push would lose. Would that losing effort help or hurt the larger cultural war?

  • Depends on how strong a push you could mount. If anything, it should make those Senators up for re-election nervous to see the natives restless.

    The best push would be to push some of those Senators out (although I heard this guy was a Republican appointee).

All That Is Necessary For The Triumph Of The Same Sex Agenda Is That Good Men Do Nothing

Friday, July 23, AD 2010

All that is necessary for the triumph of the same sex agenda is that good men do nothing.  The fear of reprisal, both materially and physically, can cause good men to do nothing.

Having not experienced this form of intimidation, I am still disturbed by the tactics that are utilized by the more militant arm of the same sex marriage agenda.  This exposure to such violence is almost non-existent for me.

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12 Responses to All That Is Necessary For The Triumph Of The Same Sex Agenda Is That Good Men Do Nothing

  • I fully agree that prayer is the answer. I believe that both action and informing the public about the purpose of traditional marriage, how it relates to Christianity, and explaining the reasons why same-sex “marriage” goes against the purpose of marriage- procreation- is very important for traditional marriage defenders to be able to win this debate or culture war. It is impossible for same-sex couples to have an openness to procreate. Traditional marriage couples have that openness (to procreate) regardless of whether the couple is having infertility issues or not. But, it is an impossibility for two males or two females to procreate naturally.

  • Seems extreme/fanatical narcissists believe in free speech for themselves but not for us. That they can silence those who may believe differently than they. The Age of Enlightenment is past.

    When we find ourselves alone and the government is derelict in its duties to protect liberties and persons. There are instances wherein physical force is justified.

  • I just can’t take this debate seriously any more.

  • Anthony,

    Should I laugh at your comment?

  • Do what you like, Tito.

    I just think that its near impossible to discuss the matter in a rational way.

  • I think I agree with Anthony.

    As Orwell (or was it Gibbon?) said (I think, I don’t have it here.) “I never make the mistake of arguing with irrational people over beliefs/issues to which they they cling that have no moral or rational basis.”

  • I’m just a little blogger, myself, and yet I’ve had a radio host suggest that people beat me up, while a kind person over at Daily Kos once opined that I should be strung up from a street lamp with a meat hook. Meanwhile, my partner in blogging was once upon a time roughed up by union goons who didn’t like his opinion being expressed in the public square.

    Some years back I managed to catch some flak for calling our progressive friends “junior-league Leninists” – it was a “how dare I?” moment. But that is what they are: narrow minded, bitter, hate-filled fanatics. They don’t want debate – to debate implies that the other side might have a valid point, and they’ll never accept that.

    And so, this is what we see – and I really doubt its a new phenomena; its likely that we’re just seeing more of it due to the advent of the New Media. In the end, this is a good thing – the more these kooks are exposed, the more outrage builds among average Americans and thus comes the greater chance of securing the power necessary to make real changes.

    Mark Noonan

  • Anthony,

    I understand now.

    n4nadmin, Teresa, T. Shaw,

    Yeah, at times (maybe most) it is impossible to engage in any dialogue with people that are this intolerant and bigoted against us.

  • “the more these kooks are exposed, the more outrage builds among average Americans and thus comes the greater chance of securing the power necessary to make real changes.”

    Just to ruffle feathers, I will say that I have little confidence that once power is obtained it is utilized properly. Power is predictably used to (1) bring reprisal on political enemies and/or (2) make it difficult to dislodge who’s in power.

    Supporters of “traditional marriage” are just as susceptible to that kind of corruption as the pro-gay marriage side.

    To this day I still believe the only peaceful way out of the argument is to walk away from state-sanctioned marriage. Both sides of this debate concede a crucial (and I think, fatal) point: that governments, even secular ones, have authority to tinker with the personal relationships between consenting adults.

    There are moral hazards on both sides of that coin. On the pro-gay marriage side there is a real risk that the next logical step is a breach into theological issues by governments, forcing religions to accept same-sex marriage or finding ways to punish them for not. On the traditional side, there is a real risk of some individuals hiding behind the issue in order to enact homophobic policies (the genuine kind, not the trumped-up kind).

    The only role I could possibly see for governments is in their authority to enforce contracts and mediate contractual disputes between individuals. There’s nothing about that power which requires the word “marriage” attached to it.

  • I tend to lean to Anthony’s side–the State didn’t create marriage, and if it were to get out of the marriage business entirely there wouldn’t be much to yell about, would there?

    Realistically, I don’t see that happening. It may be useful to remind folks who think their “tolerance” badge will be tarnished if they don’t give in to this exercise in social engineering that the State really shouldn’t be meddling if it can’t demonstrate a compelling interest. The State’s interest in traditional marriage is that it provides the best environment for raising children who do not subsequently become problems for the State. I believe that compelling interest is largely absent (or at least, highly optional) in same-sex relationships.

  • My qualm with “the State’s interest” is that it shifts with the political winds.

    Under certain circumstances it could be in the state’s “interest” that abortion become illegal. The need for cheap labor, future soldiers, taxpayers and population collapse could all be reasons for the state to do away with abortion. On the other hand, reducing costs, freeing the supply of goods, eliminating undesirable traits and population control could (and are) used to justify abortion.

    Take marriage. I could just as easily justify allowing gay marriage by saying the practice would (or could) stabilize promiscuous behavior, “normalize” certain consensual sexual acts, reduce instances of violence against gays while providing the state with fiscally stable homes in which to place unwanted children. All are reasons to be a-okay with letting gay marriage move forward. And, selfishly, the State will undermine the Church, thus increasing government’s sway with people over that of religion.

    Where do we really go to worship? The Church, or the State? It’s an important question to answer because it seems that both sides wish to see their values either codified or validated through the coercive powers held by government. If “my values” receive the government’s stamp of approval then “the Truth” be damned.

    These are questions Christians of all stripes should think long and hard on before rushing to pass laws or fire shots in the culture wars.

  • The State isn’t going to get out of the marriage business. Marriage between a man and a woman is the bedrock foundation of our society. Homosexual “marriage” is a travesty being foisted upon society by those who wish the State to give its stamp of approval to homosexuality and use the coercive power of the State against those who dissent. This is an important battle and should be fought against by all those who realize that this is part of a struggle waged by those who wish to turn the concept of family on its head.

Should The State Get Out of the Marriage Business?

Wednesday, March 18, AD 2009

As people wait for the results of the California Supreme Court’s review of Prop 8, Douglas Kmiec and one of his Pepperdine Law collegues have put out a proposal that the government get out of the marriage business entirely, and instead bestow “civil union” certificates on households of any configuration or persuasion.

Instead, give gay and straight couples alike the same license, a certificate confirming them as a family, and call it a civil union — anything, really, other than marriage. For people who feel the word marriage is important, the next stop after the courthouse could be the church, where they could bless their union with all the religious ceremony they wanted. Religions would lose nothing of their role in sanctioning the kinds of unions that they find in keeping with their tenets. And for nonbelievers and those who find the word marriage less important, the civil-union license issued by the state would be all they needed to unlock the benefits reserved in most states and in federal law for married couples.

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27 Responses to Should The State Get Out of the Marriage Business?

  • Just to be clear, you’re advocating that the government recognize what we call “natural marriage” because that is the only path that respects both marital dignity and does not allow — on a widescale — activity and arrangements sanctioned by the state as permissible when it contradicts our basic human nature? Yes? If so, I agree.

  • Yes.

    I suppose to be really precise: I’m saying that we as Catholics should advocate that the state define marriage as what we recognize as “natural marriage”.

    We shouldn’t just cede the point and say, “It doesn’t matter what the state calls marriage or if there even is a civil marriage, because we as Catholics define marriage in our own sacramental way which isn’t the same as civil marriage.”

    Because we as Catholics see natural marriage as a moral good and potential channel of grace, we should exert all possible efforts to keep marriage as it is recognized by the boarder society in keeping with our understanding of natural marriage.

  • How would the civil acknowledgement of permanent, gay unions actually do harm natural marriages?

  • is that a real question?

  • Yes. Based on DCs explicit reasoning, the question is still not answered.

    This says nothing one way or the other about my own beliefs on the matter.

  • How would the civil acknowledgement of permanent, gay unions actually do harm natural marriages?

    I’m not sure that’s exactly the right question. My claim isn’t that “gay marriage” would hurt natural marriages (as in, couples with natural marriages) but rather that from a Catholic point of view we should seek to maintain in the wider society a cultural understanding of marriage which is as close as possible to the Catholic understanding of natural marriage.

    Natural marriage is just that: Natural. A pair of human mates. And so as such it’s necessarily between a man and a woman.

    So my reason why it would be problematic to acknowledge gay unions as if they were marriages is that it sends the wrong cultural message as to what marriage is. And when people have a wrong understanding of what a fundamental social institution is, it will end up hurting them and society as a whole.

  • Mark,

    If the state sanctions something, it is considered to be a right, or a good. We would, in effect, be recognizing all couples as equal, when in a sense a same-sex union is not equal to a heterosexual union, though all people are equal in dignity. It is a false anthropological and ontological presumption.

    It is the epitome of relativism in that everyone vows to kill the debate rather than find the moral virtue to debate toward the truth in a civil manner. The sense of peace is a false one, based entirely on a false premise — that all unions are equal and that the state should make no sort of moral presumptions.

    Additionally, these unions are what creates families and it will open the wrong door in the debate over gay adoption. If the state treats all couples equally, then there is no reason why gays should be prevented from adopting; at best, religious and private institutions wouldn’t have to participate. In essence, the common good is entirely undermined. Revelation set aside, it occurs to me as a homosexual, that the psychological and sociological evidence have not confirmed (nor as a Catholic trusting in the truths of my faith do I suspect they will) that children being raised by same-sex parents will grow up no differently than children raised by parents of the opposite sex — which reflects the natural design in which children are biologically created. In some sense, children are reaffirmed as commodities that people have a “right” to and not as precious gifts. The reason that our culture is suffering right now is particularly founded in our misunderstanding of marriage and family — from the intrinsic feature of bearing and rearing children as a part of married life. Our contraceptive mentality has opened the door to see marriage just as a personal fulfillment with no intrinsic obligations as MM suggested and the result is, there should be no reason to exclude anyone from it.

    The point is this: if we were to have the state adopt a marriage neutral stance, we would be at the point of America over a generation ago when contraception was introduced as a moral-neutral choice for couples, which has done nothing but spiral into an out of control erosion of the family and marital dignity.

    The solution to our cultural struggle doesn’t strike me as a compromise more interested in “peace,” in the sense that no one argues or debates about it, but rather to seek by just means, a recognition of this basic natural institution of marriage that is knowable to some extent by reason. For if we continue to allow our culture to ignore and deny the existence of fundamental truths, we further obscure our sense of God and human nature and are only failing ourselves in trying to save as many souls as possible by relativizing the truth for the sake of not arguing about it.

    Such relativism is already expressed in the terrible misconceptions of American legal positivism. In the Supreme Court case, Planned Parenthood vs. Casey, it was stated in the ruling that: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” This may in fact be the moment where relativism was in itself enshrined into law, where the autonomous man now is convinced that we have the right to define — not discover — the truths, moral or otherwise, of the universe. Unless we are willing to admit that there are moral truths written onto the very fabric of our human nature and live according to them, there will be no true human flourishing and we only damn ourselves, if not by God’s mercy in the next life, certainly with more problems and moral qualms in this one.

  • Although I agree that the state OUGHT to affirm only natural, opposite-sex marriage as “marriage,” I also believe that given the state of current legal precedent, legal recognition of same-sex marriage is probably inevitable, barring some kind of miracle.

    In fact, civil marriage as we know it today already has lost all of the elements Catholic teaching says are essential to marriage — permanency, fidelity, and openness to children. No-fault divorce killed the first two elements, and abortion/contraception killed the third.

    Personally I think it was no-fault divorce (which freed couples of having to prove some kind of justifying serious reason to divorce, and allowed them to dissolve marriages by mutual consent, or simply at the whim of whichever spouse wanted out), rather than contraception (which, let’s face it, a lot of couples probably practiced on the sly anyway), that really started marriage on a downhill slide. No-fault divorce makes marriage one of the few, if perhaps the only, legal contract that CANNOT be enforced against the party that wants to break it.

    DC, you argue that recognizing gay unions “sends the wrong cultural message” regarding what marriage is. I say, no-fault divorce already did that. The horse is, in essence, already out the barn door.

    With that in mind, I could accept some kind of arrangement under which everyone — gay, straight, platonic or whatever — can legally enter a civil union or partnership that makes the participants each other’s next of kin, and is not called “marriage”, as a lesser evil to simply being forced to recognize same-sex unions as legal “marriage.”

    A complete separation between religious and civil marriage — such as exists in other countries where religiously observant couples go through two ceremonies and clergy do not sign off on marriage licenses or certificates — may end up being necessary if only to protect religious marriage from the encroachment of the state, which will, I am sure, eventually demand that anyone who performs legal, state-sanctioned marriages must not “discriminate” against gay couples.

  • Heck, if the state is going to get out of the marriage business, why go half way? Really get out of it–no civil marriage, no civil unions, no joint tax filing, no marriage penalty, no civil divorce, no guaranteed inheritance. Require everybody not related by blood who wants to form a partnership of any kind to go through the trouble of enshrining it in legal conracts and powers of attorney. Leave “marriage” to the churches, where it might actually mean something. Fewer people will marry–but chances are fewer will divorce.

  • Elaine’s right about no-fault–that’s what started this on the slide to hell. The real battle needs to be a gradual rollback of no-fault.

    I somewhat sympathize with cminor’s idea, but I’d like to try something else first–a two-tiered marriage system, like that which exists in at least one State (which one escapes me). Namely, you have (1) the old, broken no-fault system and (2) “covenant” (IIRC) marriage, which is fault oriented, and much more rigorous and difficult to end, especially where there are children. I also believe that there are more benefits for couples who choose the old route. You could call the latter marriage and leave the rotted-out no-fault system for “civil union” status.

    [As an aside, the no-fault system has always been why the so-called “conservative case for gay marriage” has been a flight of fantasy–it’s domestication powers are clapped out, let alone trying to transform a subculture.]

    The state still has an interest in marital bonds for reasons wholly independent of marriage, starting with those “new citizens” we call children, property, inheritance and the like. It’s grown organically for a reason. If you go to a pure partnership/contract system, you are ultimately proposing another social revolution, more sweeping than no fault divorce, with unforeseeable consequences. “What can it hurt?” is one of the more horrifying phrases in history.

  • Don’t mind me, Dale–I had my snark on. Is it Arkansas that has covenant marriage?

  • cminor:

    Yes, I think it is Arkansas.

    Oh, and don’t sweat the snark. It’s not like I never use it. 🙂

  • DP- don’t forget corollary to “what could it hurt,” as postulated by M. Shea:

    ‘How were we supposed to know?”

  • DC, you argue that recognizing gay unions “sends the wrong cultural message” regarding what marriage is. I say, no-fault divorce already did that. The horse is, in essence, already out the barn door.

    Elaine, I recognize the point that no fault divorce and contraception have already hollowed out civil marriage and left it with little resemblance to natural marraige, but I think it probably goes too far. Allow me to indulge in thinking out loud a bit here:

    It strikes me that the idea of natural marriage boils down to saying: mating matters. When a human person forms a mating bond (to sound all nature special-ish, if you don’t mind — it’s the Darwin coming out in me) the Church says that that person incurs certain moral and social obligations to fidelity and openness to life whether that person realizes it or not. (And indeed, whether that person is “married” in any formal sense or not. It strikes me this even applies to common law marriage type situations.)

    Now, since the Church holds that when you start a mate relationship with someone, you incur the moral obligations of natural marriage, it would seem logical from a Catholic that it would be good for both individuals and society if society sends the message that entering such a relationship comes with those obligations.

    However, a great many societies throughout world history (and virtually all non-Christian) have allowed some sort of divorce — though in some societies it has been very much frowned upon. How much does that undermine the nature of marraige?

    I’m sure it undermines it, but I’m not sure how much. Marriage remains a relationship which is permanent unless some intervening force (a divorce) comes into play. It’s “natural” end point is death, though divorce than intervene and cut it off early. Thus the “happy ending” for marriage continues to be a “till death do us part” idea, even if half the actual marriages end in divorce instead.

    Similarly, while I think it seriously weakens marriage that the use of contraception (and the idea that people only have children when the intend to) is so widespread, so long as marriages consist of a man and a woman, kids tend to happen. (This is anecdote, not data, but over the years I’ve seen a great number of female coworkers get married, proclaim that they won’t have children “till they’re ready” and then get pregnant as a “surprise” within the next 24 months. Yeah, well, “Surprise!” but if you have sex regularly, even attempting to use contraception, you often end up pregnant.)

    So while I agree there are a great many assaults on marriage in our current culture, I don’t think that natural marriage is such a lost cause as it is. However, I think that abolishing civil marriage entirely and replacing it with a generic “civil union” which was equally available to opposite sex and same sex couples, as well as anyone who happens to share living space and wants some tax breaks, would serve to break down the awareness of natural marriage a good deal more in our society than it already is. Calling it a “civil union” and making it equal opportunity would, I think, tend to strip out a lot of the long standing cultural baggage which currently adheres to the “marriage” term. And that would be to the detriment of society.

    Similarly, although it’s true that no fault divorce makes marriage impermanent (and thus violates its meaning) it would be a lot _more_ destructive if civil marriage were set up to expire and need to be renewed every year. Sure, you can divorce any time with no reason, but there is at least the built in assumption that it will last till death _unless_ something goes wrong.

    It seems to me that going to a civil union only system (open to other configurations than one man/woman mate pair) would be more on the destructiveness level of having an annual contract version of marriage than on the no fault divorce level.

  • A fault in these discussions is, I believe, an implicit sense that the government in the U.S. [the State] is a moral government; that somehow the U.S. is the New Jerusalem, the City On the Hill.

    Now the U.S. government, or its elected representatives, may have done some good things. It has also done some horrible things. Slavery comes to mind, and that continuation of slavery which were the Jim Crow laws. Now we have child murder and killing off the elderly, and the disabled.

    As Catholics, we tend to think that we have a place in this State, this Society. But it is a place on disdainful sufferance: whether from the Protestant denominations or their cast offs, the liberal progressives. Many Catholics look for, and believe they have gained, acceptance from these groups. It is rather like the sufferance gained by Jews under Gladstone – “as long as they know their place”.

    Look around and you will find that the Catholics who have gained some acceptance have done so at sacrifice of their principles. One has but to read the articles in COMMONWEAL, The NATIONAL CATHOLIC REPORTER, AMERICA [“THE” Catholic weekly – ah, the Jebbies].One has but to pay heed to the excuses by “catholic” college and university presidents that they wish to keep up with their academic colleagues.

    I believe it will be clearer if one remembers the treatment of the Church under the Roman emperors. At the moment, the Church in America has not yet been inflicted with open oppression. But it is blind to believe that it could not happen. And especially if so many Catholics act like the bishops under Henry VIII. “What can it matter?”,

    To the question at issue – marriage by two males or two females – state marriage in this country was the product of Protestant theology, itself a degenerative derivative of Catholic theology. Then divorce became easier; then the use of contraceptives [“what can it matter?”]. Now the prevalence of baby murder. And now the growth of pregnancies without “benefit of the banns”.

    It is difficult to keep human nature within bounds. Because it is difficult, it is said to be impossible. That is a cop-out.

  • Gabriel, I seem to remember reading an old Catholic marriage instruction book that my parents picked up (back in the 1950s) which quoted various papal encyclicals as saying, in effect, that since marriage was a divine institution the state really had no right to regulate it in the first place.

    I realize that what the popes in question were referring to were, most likely, civil laws allowing divorce and remarriage. Still, it sounds kind of ironic in light of the Church fighting so hard to MAINTAIN state regulation of marriage today.

    Also, didn’t Martin Luther insist that marriage was NOT a sacrament, but purely a civil matter? If that is the case, perhaps we can indeed thank the Protestant Reformers for our current situation.

    I thought it was Louisiana that proposed or tried “covenant” marriage; I don’t know whether they still have it or not.

    If I were queen I would launch a massive public education campaign aimed at reminding people of the benefits to society of as many children as possible having BOTH a mother and a father. I would also remind same-sex couples that there is nothing preventing them from drawing up private contracts with the aid of an attorney, or even acting as their own attorneys, to confer upon each other all the legal benefits of marriage, such as inheritance, health care decision making, insurance benefits, etc. Therefore their civil rights are not being violated by marriage being reserved for opposite sex couples.

  • While a debate on purely intellectual grounds is of great value, let’s try and approach this with the mind of the CHURCH:

    http://www.vatican.va/roman_curia/congregations/cfaith/documents/rc_con_cfaith_doc_20030731_homosexual-unions_en.html

    The Church teaches that respect for homosexual persons cannot lead in any way to approval of homosexual behaviour or to legal recognition of homosexual unions. The common good requires that laws recognize, promote and protect marriage as the basis of the family, the primary unit of society. Legal recognition of homosexual unions or placing them on the same level as marriage would mean not only the approval of deviant behaviour, with the consequence of making it a model in present-day society, but would also obscure basic values which belong to the common inheritance of humanity. The Church cannot fail to defend these values, for the good of men and women and for the good of society itself.

  • Elaine,
    I can’t speak for all Protestants, but my dh, who was raised Methodist, says that in that church marriage is not a sacrament.

  • Elaine,

    I concur with your opinion of no-fault divorces, but I’d also like to add that contraception played a major role as well. As the procreative act had been torn asunder from the unitive act, a mental divorce between the two seeped into the mainstream where the act of getting married has become ultimately meaningless.

  • Elaine,
    I believe our problem stems from the short time [and it was short] in which the Church was heeded about such matters. The point I am trying to make is that the laws of the Church come first, the state laws second.
    Whether or not the State gets involved in marriage speaks to the morality of the State, not of the Church. For all that we are U.S. citizens, we are Catholics first. Fortunately we have [unlike other denominations, and even unlike Judaism] a central authority which speaks slowly and carefully and clearly on moral matters.

    Just as we are meant to rely on doctors when we have a medical problem, so we rely on the Holy Father when there is a moral problem. We Catholics are extremely blessed in this. This blessing we may have to pay for with the scorn of the mediums and the semi-catholic.

  • Gabriel,

    Assuming that we eventually have same-sex marriage in the future, it would certainly accelerate the decline in the sanctity of marriage as being another ‘option’ to go through the motions. Something along the lines of where Norway and Sweden have regressed to.

    That being said, we as Catholics (and I agree wholeheartedly that we are Catholics first and Americans second) can be shining examples of what a healthy and fruitful marriage is. We can be very counter-cultural and further raise our profile within secular society. We can certainly be winning more converts over to our faith and side in the long run.

    Besides, we procreate in more proficient numbers than contraceptive marriages do.

    Yes, I have a rosy view of the future, but I like it!

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  • Tito,

    Much of the problem with the changes is linguistic. Perhaps [if anatomical language is permissible] marriage should be defined as including the possibility of a man putting his engorged penis into a woman’s vagina. It does not include putting the penis into an anus, or sucking the penis, or licking the anus. The proponents of gay “marriage” use the respectability of marriage to distract from these common homoerotic actions.

    [Before anyone gets to annoyed by the words, I refer to 1 Kings 25:22 where David threatens “any that pisseth against the wall”. Which is to say, any male].

  • I should add to my comment that the Church does not recognize a marriage when the man is incapable of “putting…”. Or the woman of receiving.

  • I just love how everyone assures me that I agree with homosexual marriage.

    Gee, it’s so nice that there are mind readers willing to throw away MY beliefs in order to get in touch with what “younger people” think these days– gleefully ignoring that we don’t, in fact, all believe whatever they’ve decided to hobble us with.

    The only reason the gov’t really needs to be involved in marriage is because the union of a man and woman tends to result in new little citizens, and it’s in the gov’ts interest to make sure those little citizens grow into law-abiding, stable, productive big citizens.
    A stable mother-and-father type home is the most effective way to do this.

    I really wouldn’t mind some kind of a contract to fix the most common complaint of homosexual activists– I really don’t think you should *have* to be married to someone in order to visit them at the hospital. Sexual activity has nothing to do with that– the older widows and widowers that I’ve known who are cared for by non-relatives who have to jump through a dozen hoops to get the folks who are acting as family…. oops, I’m digressing…..

    Anyway:
    When two men can accidentally find themselves pregnant, then I’ll consider if homosexual marriage might be a civil rights issue.

  • Also, please bear in mind that these are the best legal minds of the law school that produced a nationally known expert in (breaking) federal corruption law — none other than former Illinois governor Rod Blagojevich, who liked to boast about having gotten a C in his constitutional law course.

  • But what happens when one questions the functions of marriage based on public versus private interests? A good intro is here:

    http://squarewondotorg.wordpress.com/2009/03/26/prop-8-and-circular-reasoning-part-iii-bound-to-the-consequences-or-the-rules-of-freedom/

California Legislature Calls for Prop 8 to be Thrown Out

Tuesday, March 3, AD 2009

According to an email update just out from Bill May of Catholics For The Common Good (not to be confused with “Catholics in Alliance for the Common Good”), the California State Senate passed on Monday resolution SR7, a non-binding resolution calling on the State Supreme Court to overturn Proposition 8, the amendment to the state constitution which passed back in November, defining marriage in California as between a man and a woman.

Anti-Prop 8 Resolution Passed the California Senate Today

Referring to the sovereign power of the voters as “mob rule”, San Francisco Senator Mark Leno asked the State Senate to adopt SR7, a resolution calling on the California Supreme Court to overturn Proposition 8. The measure, that has no force of law, passed 18-14 this afternoon (Monday, March 2).

A similar measure, HR 5, is on the Assembly floor and could come to a vote at any time. Please call your Assembly member and ask him or her to vote “NO”. Details can be found here: http://www.ccgaction.org/family/protectionofmarriage/CA/resaction09-02-17#action.

Perhaps our lawyers can enlighten me, but it seems to me that should the State Supreme Court follow the legislature’s request and overturn the amendment, then the democratic process would have fundamentally broken down.

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19 Responses to California Legislature Calls for Prop 8 to be Thrown Out

  • “Perhaps our lawyers can enlighten me, but it seems to me that should the State Supreme Court follow the legislature’s request and overturn the amendment, then the democratic process would have fundamentally broken down.”

    In a word yes. The idea that an amendment to a constitution can be declared unconstitutional by a court removes the last fig leaf that we are governed by constitutions rather than by the courts that construe what the constitutions mean. If the California Supreme Court follows this advice from the California legislature, this will have ramifications far beyond the issue of gay marriage and far beyond California. It will be a naked and obvious attempt by the Court to substitute its policy preference for a part of the California Constitution. It will be then up to the People to determine whether they rule themselves, or whether they surrender that right to lawyers in black robes.

  • It’s certainly an usurpation of the democratic process. However, many legal scholars believe that courts should perform a counter-majoritarian function, and step in to protect discrete and insular minorities likely to be disadvantaged by the democratic process.

    From a cynical point of view, I suppose it’s not surprising that legal scholars and judges to talk themselves into believing their wisdom is necessary to protect the country from the unwashed masses. But sometimes this intervention is something I would support (e.g. Brown). Other times, not so much. It’s troubling that the court would step in so quickly to overturn a state referendum. Why have referendums at all?

  • Since when are gays a minority group?

    If they can be a minority group then bald white hispanics should be recognized as a minority group as well (me).

  • If a law is unconstitutional, then the Court should overturn it, no matter how it was passed. Democratic majorities possess no claim to greater sanctity just by being democratic majorities.

    However, Prop 8 is an amendment to the Constitution of California. By their very nature amendments cannot be unconstitutional. Moreover, even if this were a mere statute, I don’t think this would be unconstitutional.

  • “By their very nature amendments cannot be unconstitutional.”

    Precisely. I can envisage a court needing to resolve disputes between portions of a constitution that appear to conflict, but obviously any conflict between a portion of a constitution and an amendment to the constitution would have to be resolved in favor of the later amendment.

  • California is not a pure democracy, nor is the United States as a whole. Rather both institutions are representational constitutional democracies, meaning the constitution can trump the will of the people should the will of the people wish to ignore the basic rights afforded to all the citizens. In urging the State Supreme Court to overturn Proposition 8, the California State Senate — who were elected by the people — are not breaking down the California democratic process but rather upholding it, ensuring that the constitution is maintained. The constitution is, in fact, what maintains peace and order and prevents mob rule.

    But I feel I must respond to your assertion that since the California Constitution nowhere else speaks to the definition of marriage, the only argument the court could use would be some sort of universal outside knowledge that marriage is open to all of any combination of sexes. Unlike the Catholic Church which seeks to be informed by faith — a universal outside source of knowledge — The California Supreme Court has no such mandate. It uses the constitution itself. The means by which it does is published and available in public archives and on the internet. To sum it up, the court made the following reasons for the original decision to uphold the right for same sex couples to marry:

    1- In the case of Perez, the Court recognized that it was not constitutionally permissible to continue to treat racial or ethnic minorities as inferior.

    2- In the case of Sail’er Inn, the Court recognized that it was not constitutionally acceptable to continue to treat women as less capable than and unequal to men.

    3- The court now similarly recognizes that an individual’s homosexual orientation is not a constitutionally legitimate basis for withholding or restricting the individual’s legal rights.

    4- The right of marriage is not directly afforded within the constitution. Rather it is derived from article 1 section 1: the right to privacy, and article 1 section 7: the right to liberty. That is, a man and woman, because of their right to liberty and privacy, can freely enter into the marriage contract.

    5- As the court acknowledges that it is illegal to withhold either the right to privacy or the right to liberty to homosexual people, it would therefore also be illegal to withhold any rights that are derived from these – one being the right to marry. Therefore a man and man or woman and woman could also enter into the marriage contract.

    Currently, because of Proposition 8, the constitution contradicts itself. It allows homosexuals the right to privacy and liberty and then withholds a right derived from these: marriage. Both cannot be upheld by the same document. Trying to determine how to reconcile this is not an exercise in appealing for some secret and esoteric outside knowledge, but basic logic. The options are that homosexuals have the right to liberty and privacy, or they do not.

    Remember, this discussion does not affect the sacramental nature of Catholic Marriage. This is about entering into a contract. The two have been conflated in the media to the detriment of the church and the state. Furthermore, this does not lead to the great fear that anyone can now marry a child or a tree or a goat. The latter two do not have the protection under the constitution and the former cannot freely enter into contracts without the authorization of an adult. This isn’t a slippery slope. This is human rights.

  • Refusal to grant a public recognition of a marriage does not constitute a breach of the right to privacy.

  • Again, I’ll defer to our lawyers on here, but the claim that civil marriage derives from the rights to privacy and liberty and cannot possibly include any definition as to the sex of the parties involved seems like a massive reach to me — though I don’t question that the California Supreme Court did indeed make that reach in throwing out the previous state proposition (which wasn’t a constitutional ammendment as Prop 8 is).

    Again, you’re assuming your conclusion. You’re assuming that marriage is a sex-agnostic arrangment, and then claiming that because marriage does not necessarily have to be between people of the opposite sex that therefore it would be a violation of the constitution to restrict people from entering into it “because they’re gay”.

    As it stands, people who are gay are not restricted from entering into marriage contracts — so long as they do so with someone of the opposite sex. They just can’t do so with someone of the same sex. (Just as people who are natually polygamous are not restricted from entering into marriage contracts, so long as they only do so with one person.)

    Why does this violate democratic and constitutional principles? Because it means that you can no longer define what the constitution means by writing or ammending the constitution. I don’t understand how we can claim to still have a constitutional republic if we don’t take the text of the constitution as written and ammended to have meaning. By that logic, judges could go throwing out any ammendment simply by asserting that it violated their interpretation of some other part of the constitution.

    If we’re to have a constitutional republic, then it would seem to me that judges must accept the text of the constitution as written to be correct and come up with an interpretive framework that fits that. Otherwise, we’re simply being ruled by judges — not by a constitution which we write.

  • I can envisage a court needing to resolve disputes between portions of a constitution that appear to conflict, but obviously any conflict between a portion of a constitution and an amendment to the constitution would have to be resolved in favor of the later amendment.

    I would agree as a theoretical matter, but according to the California AG’s response to the amicus briefs, initiative amendments are subject to judicial review for compliance with the Constitution, and several have been struck down previously. I am not really familiar with the CA state law, but it appears that the CA Supreme Court has previously struck down initiative amendments.

    http://www.courtinfo.ca.gov/courts/supreme/highprofile/documents/agresponse.pdf

  • What’s interesting to me here is the question: Is the claim in regards to same sex marriage falsifiable. In other words, given the interpretation which judges have come up with is there any way in which the constitution could be written or ammended that _would_ be able to define marriage as being only between two people of the opposite sex — or is this a claim in which once the Judge’s have decided that liberty and privacy demand gay marriage, there’s absolutely no way the constitution could be written that would not be thrown out.

    If the latter, then it’s clearly whatever’s in the judges’ heads that rules the state, not the constitution. One might as well go without the document entirely, since it doesn’t matter what it says.

  • California is not a pure democracy, nor is the United States as a whole. Rather both institutions are representational constitutional democracies, meaning the constitution can trump the will of the people should the will of the people wish to ignore the basic rights afforded to all the citizens.

    Nice try, but you’re missing some important details. The constitutions offer means of amendment. Difficult means, for sure, but nevertheless. The reason for amending the constitution is because particular portions of the constitutions have been deemed insufficient in dealing with particular matters. Once the amendment has been added to the constitution, it is part of the constitution. Thus, in the circumstance of amendments, the will of the people can trump the constitution.

    Let me repeat: it is not unconstitutional to change the constitution, under the guidelines laid out for changing the constitution. Now, you can try to make an argument that, if there is a portion of the constitution with says “A” and you make an amendment that specifically states “not A”, then there is reason for concern. However, this is not the case in the slightest. This “derived” human right you speak of is nowhere enumerated: the derivation of it is questionable at best, a strain of reason to be charitable, and utter doggerel in reality. We’ll get to that in a moment.

    In urging the State Supreme Court to overturn Proposition 8, the California State Senate — who were elected by the people — are not breaking down the California democratic process but rather upholding it, ensuring that the constitution is maintained. The constitution is, in fact, what maintains peace and order and prevents mob rule.

    In two breaths you contradict yourself. You assert on one hand that the constitution is what maintains peace and order and prevents unruly mobs from issuing whatever order comes around, and on the other hand you state that the constitution can be thrown down by mob rule. If you don’t see this, let me clarify.

    First, the amendment was added to the California constitution through constitutional processes. There’s nothing about it that explicitly conflicts with the constitution (only the court’s interpretations thereof, which is the whole point), and thus the amendment is now part of the constitution.

    Second, the protest against the amendment, as opposed to being quelled by the new law of the land (or more precisely, the newly clarified law of the land), is being railed at.

    Third, the Senate seeking the courts to overturn this amendment is not using the constitutional means to change the constitution. Rather, they are seeking to bypass the constitutional means and are resorting to the “we’re loud enough and we say so” means of overruling the amendment. If that isn’t being ruled by mob mentality, I don’t know what is.

    Now let’s look at the Supreme Court’s decisions:

    1- In the case of Perez, the Court recognized that it was not constitutionally permissible to continue to treat racial or ethnic minorities as inferior.

    While I have no problems with this statement, per se, I would point out that homosexuality is neither a racial trait nor an ethnic background.

    2- In the case of Sail’er Inn, the Court recognized that it was not constitutionally acceptable to continue to treat women as less capable than and unequal to men.

    I could also quibble with the “less capable” part, but just because I think you should state “no one should be deemed less capable simply by their sex (save in those instances where sex matters, such as insemination and pregnancy), but other attributes such as physical strength, health, stamina, etc.” And the reason for stating this is because it seems this statement is geared towards a “women are no less capable than men in marrying women” type of statement, which is immediately dispensed by the “save in those instances where sex matters” clause I think is necessary.

    3- The court now similarly recognizes that an individual’s homosexual orientation is not a constitutionally legitimate basis for withholding or restricting the individual’s legal rights.

    No argument here. However, one should pay close attention to the words “orientation” and “legal rights”. Orientation does not immediately imply action, and legal rights are not so universal that no conditions can be put on them. For example, you have a legal right to own a gun provided you are not a felon or domestic abuser, have filled out the paper work, and have jumped through all the other hoops. Furthermore, just because people want something does mean there is a legal right to it. A person recognized as having a sexual attraction to little children–but does not act on it–doesn’t have a legal right to work in a day care, no matter how much he wants to, simply because it isn’t prudent (and in fact could be quite dangerous, given the temptation).

    4- The right of marriage is not directly afforded within the constitution. Rather it is derived from article 1 section 1: the right to privacy, and article 1 section 7: the right to liberty. That is, a man and woman, because of their right to liberty and privacy, can freely enter into the marriage contract.

    This argument is by far too simplistic and ignores a lot of problems. For example, the right to privacy is not absolute, and the right to liberty hardly means the ability to engage in anything. If a behavior is illegal, for example, it doesn’t matter if it happens in private. It is still illegal. Furthermore, for a behavior that is wrong, but not necessarily illegal, it is not necessarily protected, either, since it does not require the state to put a rubber stamp of approval on it.

    As a note, also realize that the amendment directly targets this argument. The amendment, in defining marriage as between a man and woman, states that allowing “marriage” between two people of the same sex is beyond the scope of liberty.

    5- As the court acknowledges that it is illegal to withhold either the right to privacy or the right to liberty to homosexual people, it would therefore also be illegal to withhold any rights that are derived from these – one being the right to marry. Therefore a man and man or woman and woman could also enter into the marriage contract.

    Accepting the flawed arguments, this conclusion seems inevitable. But the “right” to marriage is not simply a derivation of the rights to privacy and liberty. First of all, the marriage of a man to a woman is a necessary aspect for the protection and continuation of society, being geared around family (both the procreation thereof and the solidarity formed when two families intersect in the marriage vows). Based on this, talking about the “right” to marriage is misleading, because there is a weak obligation (weak meaning that not everyone is obliged to do so, but most should and will) attached to it.

    Second, because of the importance of marriage to the function of society, certain prohibitions have be put up around it, and the above arguments (as stated in your reply) do not address these concerns. In fact, you’ll see why this is a slippery slope argument in a moment. But we see such prohibitions as immediate family members (siblings, parents, children, cousins) cannot marry. A person who is currently married cannot marry again without divorcing first (or waiting for the spouse to die). A person under a particular age (depending on place) cannot marry. There are reasons these limitations have been put into place, reasons beyond rights to privacy and liberty, and reasons that have everything to do with the “right” and necessity of marriage to begin with.

    Now, if marriage is only about “privacy” and “liberty”, what argument is there against incestuous marriages? Plural marriages? Even marriage with little children (assuming the child’s parent co-signs the marriage contract)? Heck, if more than two people can sign a marriage license, why not just one? Who says that “marriage” should just be between humans? After all, this is a matter of privacy and liberty, right?

    So, no, the argument does not hold. The conclusion the courts came to was fallacious because their reasoning was first too simple and second already presupposed the conclusion. Thus this “right” for homosexuals to marry has not even honestly been established as a right to begin with. And thus the amendment is not unconstitutional, and the seeking to overturn the amendment through the courts is in fact a gross violation of the constitution.

  • Here is the brief of the intervenors, the people who support upholding Proposition 8, in response to the amicus briefs and the response brief of the California Attorney General.

    http://www.courtinfo.ca.gov/courts/supreme/highprofile/documents/hollingsworthresponse.pdf

    For those with a lot of time on their hands, here are all of the amicus briefs.

    http://www.courtinfo.ca.gov/courts/supreme/highprofile/prop8.htm#amicus

  • Last note. Sometimes writing a long reply means others beat me to the punch. If amendments are up for judicial review even after having been voted into law, then that weakens my argument a little. However, the general protest remains in that amendments are meant to refine how the constitution is interpreted, and thus if the amendment contradicts some interpretations, but not what the constitution says otherwise, then throwing the amendment out because of the interpretation remains a mob rule mentality as opposed to a constitutional mentality.

  • I’m not a lawyer, and I don’t even play one on TV, nor did I stay at a Holiday Inn Express recently, but the whole idea that an amendment to a constitution could possibly be “unconstitutional” is completely incoherent. In order to be unconstitutional, a statute must require or forbid something that is either permitted or forbidden by some constitutional document. But this definition cannot possibly apply to the contents of that constitutional document itself. If it did, then the United States Constitution already contains unconstitutional amendments (18 & 21).

    In other words, if Proposition 8 contradicts anything else in the California constitution, all that means is that the other stuff is repealed by virtue of the inclusion of Proposition 8.

    Someone might make the argument that, in the case of the US Constitution, the 21st amendment specifically refers to the 18th amendment and actually uses the expression “is hereby repealed” and, hence, is a different sort of case. On this view, the text of Proposition 8 stands in a different sort of relationship to the rest of the California constitution than the relationship between the 21st Amendment and the rest of the US Constitution. But this merely raises the question of what we are to do when a constitutional document contains clauses that are logically contradictory–who is the arbiter of such cases?

    The courts are the arbiters of how to interpret constitutional laws and how to apply them in ways that are most consistent with the intentions of lawmakers. Hence, since Proposition 8 is more recent than anything else in the document, it must take precedence in two senses: first, because it reflects more accurately the present intentions of the people of California, and second, because it was passed by referendum and not the legislature, it more accurately reflects the intentions of the people as a whole, who are the statutory “lawmakers” in this particular case.

    In any event, it has never been in the power of the courts to either include or exclude any constitutional texts, their powers are restricted to matters of interpretation only.

  • My argument isn’t on how the court should rule on the constitutionality of proposition 8. I do not and would not deny that I have strong opinions on the matter, nor that I would prefer one ruling over another. My comments, however, were meant to respond to DarwinCatholic’s original post. He worries that when the senate petitions the court to overturn proposition 8’s amendment the stability of California’s democracy is itself at risk. It is not. It is the court that protects our democracy. It is what the founding fathers of the nation used to put the legislative and executive branches of the government in check. And though it may sound counter-intuitive, it is what keeps the majority of the population in check. It keeps any majority from oppressing any minority. It is the reason why women can own property, why black children can attend any school, why you can’t fire a lesbian from her job simply because she is a lesbian.

    On DarwinCatholic’s second post he wrote: “If we’re to have a constitutional republic, then it would seem to me that judges must accept the text of the constitution as written to be correct and come up with an interpretive framework that fits that.”

    I agree with exactly that. The constitution, as written, now has an internal contradiction. Either the amendment negates the original interpretation of the constitution, or the original interpretation of the constitution prohibits an amendment voted in by the people. I have no idea how the court would rule. Perhaps it is true that a later amendment has priority over an earlier interpretation. Perhaps, as John Henry points out, the very fact that previous amendments have been over-turned is because the constitution explicitly gives this power to the judges. But the mere fact that the court can interpret the law–that it is mandated to do so–does not imply that the court is legislating, harming the rights of the people, hurting democracy, or that they have “some sort of universal outside knowledge.”

    It is this power that distinguishes California from Syria and Myanmar.

  • Alex,

    See, the problem as I see it is when you say “The constitution, as written, now has an internal contradiction.” and then continue “Either the amendment negates the original interpretation of the constitution, or the original interpretation of the constitution prohibits an amendment voted in by the people.”

    The constitution (including the Prop 8 ammendment to it) as written has no contradition. The contradiction is between the interpretation previously offered by the court (what they interpreted the existing text to mean) and what the ammendment says. The ammendment contradicts something which the court previously held to have been implicit in the broad rights outlined in the constitution.

    Now, why should the claim that in this case the court’s previous interpretation should have precedence?

    Well, imagine that around 1890 a heavily racist series of administrations had been voted into power, and a succession of presidents appointed racist supreme court justices to the US Supreme Court, who then proceeded to rule in a landmark case that the 13th, 14th, and 15th ammendments to the US Constitution were in contradiction to the Dred Scott v. Sandford verdict, and therefore invalid. The justices throw those three ammendments out.

    Not only would that be a huge setback for civil rights, but it would be something which it was fundamentally impossible for people to resolve at some later date. If elements of the text of the constitution can be thrown out based on how judges interpret other parts of the constitution, then we cease to have a constitutional republic.

    You’re right that our nation’s founders envisioned the courts of checking the power of the executive and legislative branches, and that for a long time this has in part been done by considering the constitutionality of laws. But the whole system falls apart if the court can reject parts of the constitution (including duly passed ammendments) based on their interpretation of other parts of the constitution. The whole point of ammending the constitution is to change what it means. And the whole point of a constitution more generally is that it means what it says and that the only way of changing that is to ammend the constitution.

    We’ve been in tension over that for the last 40-50 years as the national and state supreme courts have increasingly read implicit rights into the existing text and used those implicit rights to overturn legislation. But up until this innovation it was always at least theoretically possible to resolve such disputes by ammending the text of the constitution. However, when we reach the point where courts can reject an ammendment on that basis that it does not conform to the court’s prior opinions (unless as John Henry notes CA has its own process peculiar to the state in which a new ammendment must first pass court scrutiny) it stikes me that we’ve ceased to have a constitutional republic and lapsed into a judicial/oligarchic republic.

    In that sense, there will be a lot less distinction between California and Syria or Myanmar if the state supreme court throws out this ammendment than there was before.

  • It is the court that protects our democracy.

    Alex, here you are missing the point. It isn’t the courts that protect democracy. They have the duty of trying to judge cases and verify constitutionality of things, so they do play a role, but they’re far from the only thing. What you are implying is that the judiciary is the highest order, which it is not. Nationally speaking, it is one of three branches, each of which checks the others. There are checks on the judiciary to keep it from going out of control, which it can do and arguably (though I don’t see there’s much argument against) have done so in the past.

    No, what really protects democracies is a moral and educated populace.

    The constitution, as written, now has an internal contradiction.

    See, you’re still not getting the point of the problem. As written, the constitution has no internal contradictions. The only “contradiction” is between what is now written into the constitution, and what the judiciary attempted to read into it. The fact that the public has the opportunity to add amendments into the constitution that nullify bad interpretations is one of the checks that exists on the judiciary. If the judiciary can then arbitrarily toss those amendments out of the window (as opposed to actually pointing to what everyone can agree is a contradiction), then it has unfettered control over what is, or is not, constitutional. That essentially makes the de facto power of the land, which in turn breaks the whole notion of a constitutional republic.

    It keeps any majority from oppressing any minority.

    The fact that this is at all being construed as oppression is ridiculous. As I mentioned before, this supposed “right” for homosexuals to marry is fabricated out of infantile reasoning. Why can women own property? Because a person’s sex is not an intrinsic part of owning property. Why can black children attend any school? Because skin color is not intrinsic to intelligence, diligence, location, social interaction, etc. How then is marriage different? Precisely because the sex of the parties involved is an intrinsic part of marriage. To make an amendment that makes this explicit no more denies liberty to someone than would, say, making an amendment saying that only woman (or at least people with the functioning organs) can become pregnant.

  • What is so deeply disappointing is that the courts, which are supposed to be so enlightened, don’t understand why these fabricated “rights” are derived from “infantile reasoning,” as Ryan so nicely put it. The courts haven’t been able to reason their way out of a paper bag for years. They exalt their own position and power, and the entire concept of judicial review, above and beyond basic reasoning. Ryan should file an amicus brief; he pretty well demolishes this faulty reasoning in a few paragraphs.

    It boggles the mind that anyone could even think that there is a natural right being violated by the amendment. How can these judges not see that the state’s interest in marriage is not in making individual privacy and liberty sovereign, but in fostering the good of society through the transmission of culture via the family unit? Same-sex marriage is just another chisel blow to an already weakened institution. I would argue that in itself it might not be totally disastrous for society to allow it, but why do we keep drip-dripping poison into our own drink? Divorce, contraception, abortion, and the shifting mores brought on by the sexual revolution… Yes, let’s just add gay marriage to the roster, shall we? Since none of those other things could’ve possibly been detrimental to marriage and family… How can we allow the drastic social experiment we’re undertaking without even a hint of trepidation at where it might lead us? It seems the argument goes, “Well, we’ve already screwed it up, so what’s one more nail in the coffin?”

    Marriage as romantic relationship and private contract above all else? God help us all.

  • Heck, if more than two people can sign a marriage license, why not just one?

    Exactly!!! Who says marriage has to be between *two* people? I’m single and I’m being oppressed! I want the full rights, benefits, and privileges of marriage, too!

    Ridiculous.

Defend Marriage. Defend Life. Protect the Future.

Monday, November 3, AD 2008

Readers in California, please don’t forget that as you attempt to chose a pro-Life candidate for President of the US you are also being called to defend marriage by voting Yes on Proposition 8. Whether they are beloved friends, co-workers or relatives, we all probably all know gays and lesbians that we love and care deeply about; many of them may be in long-term loving relationships. But let’s not fool ourselves, a “marriage” between two people of the same sex is not a marriage in Christ. It is not love in the way Christ called us to love one another and the more we head down this path of destroying the institution of marriage, the further we move down the road to our own destruction as a society.

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11 Responses to Defend Marriage. Defend Life. Protect the Future.

  • The only problem I foresee with an affirmative vote on Proposition 8 is that it warrants the marriage of a transgender male and a transgender female. Under Prop 8, such a “marriage” would be “valid” and “recognized” in California.

    We must be wary of accepting transgender marriages because transgender people are disgusting and morally reprehensible. Voting “Yes” on Prop 8 will promote transgender marriages and a disgusting and messy alternative lifestyle. So, an affirmative vote on Prop 8 will encourage transgender marriages.

  • Made recent trip to Southern California. Turned on local teevee news soon as the bags were dumped in hotel room closet. Assaulted by blasts of Prop 6 this and Prop 10 that and stuff from Mexico will poison children. Turned off tube, went to dinner. But glad to see the Prop 8 forces spending oodles of coin on those commercials. Did I see rumor that His Eminence Cardinal Mahony wrote check for 1 million for Pro-Prop 8 effort. A stopped clock is right 2x daily.

  • Actually, no, I’m not a “troll” (and I’m not a plumber or Joe “six-pack” either) but I am very concerned with recent Catholic support for fringe legislation, such as Prop 8 in CA and Amend 48 in CO. It seems fewer and fewer Catholics — especially bishops and cardinals — are thinking about the obvious implications of legislating morality.

    But if “Joe is a troll” has something more useful and substantive to say than just toss slanders toward fellow Catholics concerned with highly questionable legislation, then I’d be happy to hear it! The problem is that you’ve not thought about such implications; have you? Let me pose the question again: What should be done about marriage between two people who are transgender?

    Since you probably won’t be able to fill out the argument, let me. You might think that Prop 8 should be replaced with stronger language: marriage should be between a natural man and a natural woman. Of course the problem is in defining “natural,” because so many people engage in cosmetic surgery over the course of their lifetime. It would be hard to say that a person who has “whitened” their teeth is natural, because natural seems to imply something about not having engaged in some form of cosmetic enhancement. We all have done something to improve ourselves, so it seems like we cannot conceive of natural in this way.

    One might think that natural implies something about being able to bear children. Of course we’d have to extend legislation to legitimize those couples who can no longer bear children, i.e., the elderly. Also, we’d have to accommodate those couples where one or more of the spouses have health problems preventing them from bearing children. Given the way that the Catholic Church has been going recently, you may think that these folks shouldn’t marry _because_ they cannot bear children. Basically, the gist of the Catholic Church’s message has been if you can’t procreate, don’t marry. So, the view that natural implies something about being able to bear children might have greater merit among Catholics.

    The problem I tried to raise in my original post had nothing to do with accepting, endorsing, or condoning same-sex marriage (read it again if you think it does). In fact, I don’t think the state should legislate marriage. I suspect, however, that is how “Joe is a troll” took it.

    I do think there are significant problems with the Prop 8 legislation when we set aside our views of same-sex marriage. Anyone who can think for themselves (rather than relying on what they read in propaganda flyers and the liberal media) would be able to comprehend this with some careful thought.

    I’d like to hear some alternatives to Prop 8 before permitting the state to dictate what is morally acceptable and morally unacceptable.

  • Joe,

    Don’t you think the state overturning the people’s will and declaring what is moral and immoral not imposing their will on the people?

  • Tito,

    I was going to say the same thing. Isn’t the judiciary legislating morality in this instance by forcing us to accept gay marriage as a right? And besides: of course the state can legislate morality! What do you think it’s doing with all those laws against murder?

    Prop. 8 is actually pretty modest in that it makes no claim on the morality of homosexual unions or relationships. It just reinforces the definition of marriage that we already understood and didn’t need redefined by the judiciary.

    In that sense, I agree wholeheartedly with Joe — we shouldn’t even have to be voting on this kind of thing! It’s only because we’ve been put in this position by a rights-inventing judiciary that we have to do it.

  • Tito, did I rule that out somewhere along the line? I don’t think I did. I grant that activist judges brought on the current situation. But the situation has arisen and we have contend with it. To not contend with it is to give in to those commie liberal yellow-bellies.

    j. christian, I don’t think that “reinforcing a definition of marriage” has nothing to do with morality. Also, what’s the definition of marriage? I think people have a hard time accepting the definition as it is outlined in Prop. 8. Polygamists certainly will have a hard time with it, though they seem to be upholding a form of marriage consistent with Prop. 8 (you just have to add a few more women to the mix). Defining marriage in any way is legislating morality.

    And, of course you’re right that we shouldn’t be voting on this kind of measure. It doesn’t belong in a state or country’s constitution at all.

  • One can argue that the state should not be in the business of defining marriage, but since the state deals with marriages already (property rights, divorces, tax implications, etc.) and the courts in CA have not imposed a definition of marriage which is patently false, I can only see it as making it better to pass an initiative defining it more in keeping with what marriage actually is.

  • “the courts in CA have not imposed a definition of marriage which is patently false,”

    Not to nitpick, but did you mean ‘now’ rather than ‘not’.

  • Joe & J. Christian,

    I understand and appreciate your responses.

    I still think that the judicial branch, being forced by liberal activists, brought this upon themselves by trying to impose their (im)morality on the state.