It is something of a consolation, albeit a small one, that the best arguments advocates for a constitutional “right” to same-sex marriage can muster are so transparently bad. Disconnected from nature, from history, from the canons of legal reasoning, and even from the standards of logic itself, their arguments betray themselves at every turn, as acts of the will and not of reasoned judgment. When the advocate advancing the arguments wears a black robe and sits on the federal bench, of course, even falsehood and fallacy have a decent chance of ultimate victory.
Such an advocate is Judge Vaughn Walker of the U.S. district court in San Francisco. After two and a half weeks of trial in January, and a day of closing arguments in June, he finally delivered his ruling and opinion in Perry v. Schwarzenegger on August 4, overturning California’s Proposition 8, an amendment to the state constitution adopted by the people in November 2008, declaring that “only marriage between a man and a woman is valid or recognized in California.” The California Supreme Court, in May of that year, had overturned an earlier popular referendum protecting marriage (that had only statutory status) on grounds that it violated the state constitution. And so the people of the state, against the odds and facing elite opposition, amended that constitution just six months later. Judge Walker has shifted the ground of the controversy to the federal constitution, and has flung wide the door of the federal courts to embrace (he hopes) some of the worst sophistical knavery that has been seen in quite some time in the pages of American jurisprudence.
Perhaps the most surprising thing in the judge’s opinion is his declaration that “gender no longer forms an essential part of marriage.” This line, quoted everywhere within hours with evident astonishment, appears to be the sheerest ipse dixit-a judicial “because I said so”-and the phrase “no longer” conveys that palpable sense that one is being mugged by… [the writer]….
Judge Walker’s eighty “Finding of Facts” are as risible as his faulty logic. A good example is Finding no. 77, “Religious beliefs that gay and lesbian relationships are sinful or inferior to heterosexual relationships harm gays and lesbians.” First, I’m unaware of any religious belief that holds that relationships among persons with SSA are inferior to relationships among persons with OSA. Second, if the religious belief that homosexual acts are intrinsically immoral is true; then that belief actually helps “gays and lesbians.” Third, obviously, Judge Walker’s “Finding of Facts” are an after the fact creation.
How about a classic Lewis paragraph for “Notable and Quotable” in connection with all this, from [b][i]The Abolition of Man[/b][/i] (written in the dark days of WWII):
[blockquote]”The process which, if not checked will abolish Man goes on apace among Communists and Democrats no less than among Fascists. The methods may (at first) differ in brutality. But many a mild-eyed scientist in pince-nez, many a popular dramatist, many an amateur philosopher in our midst, means in the long run just the same as the Nazi rulers of Germany. Traditional values are to be ‘debunked’ and mankind to be cut out into some fresh shape at the will (which must, by hypothesis, be an arbitrary will) of some few lucky people in one lucky generation which has learned how to do it.”[/blockquote]
Only problem is it exemplifies that law that any discussion on the internet will, at some point, devolve to accusations of Nazism. For all that, the last sentence is prescient. BTW, Freud, Shaw, and A.J. Ayer are the subjects of Lewis’ subtle put-down.
Mr. Franck’s explication of the judge’s decision begs the question: Where were these “facts” during the trail? Why after spending “God knows how much money” during the campaign was so little attention given to expert testimony during the legal challenge? There seems to be an attitude much prevalent in certain quarters that “I’m correct; therefore, what i say is self evident; therefore i have no need to prove anything.”
The Franck article nails Judge Walker well.
Ross Douthat has an excellent article today in the NYT,The Marriage Ideal, in which he rejects the conventional arguments that lifelong heterosexual marriage is natural and the nuclear family is universal.
He argues the Christian ideal of a lifelong marriage between a man and a woman that is richly beneficial to both the couple and their children.
Douthat is among the better of the younger minds coming up.
Thank you, Porcell, for the link to the Douthat column. Part of the difficulty is we’ve emptied the “Natural Law” of its real significance. As the term is used by Thomas Aquinas, it has to do with human thriving, not with what is “natural” in some empirical (evolutionary?) sense. If we take it in the empirical sense, then Douthat is right and the argument is doomed. However, his column is a good example of true “Natural Law” reasoning. That caveat aside, it’s a wonderful column, especially in connecting marriage to fidelity across the generations.
Deaconmark, not only does God know, but happily we also know how much money was spent by both sides on Prop 8. It’s been reported that the proponents spent 39.9 million and the opponents spent 43.3 million. In fact, when the marriage issue has been put to a vote, everytime(31) the people have voted in favor of a Prop 8 like definition despite being outspent by their opponents.
Perhaps, you don’t understand what begging the question means. Franck addresses the fallacious move that Judge Walker makes in his argument that from the change in coverture law it follows the sex of the spouses is no longer an essential element of marriage(the fallacy of composition). What question did Franck beg?
Surely, you don’t believe that Walker’s risible “Findings of Fact” somehow seal the deal. Look at finding 77, “Religious belief that gay and lesbian relationships are sinful or inferior to heterosexual relationships harm and gays and lesbians.” First, Walker mistates what the religious belief is, which is that homosexual acts are immoral. Second, Walker begs the question by assuming that the religious belief is untrue. If it’s true then the belief does not harm gays and lesbians. Walker’s finding is the equivalent of saying that the commandment not to steal harms burglars.
deaconmark: I am quite sure that Judge Walker had his findings of “fact” pretty much determined before he heard any evidence whatsoever. This decision reads like a set-up. The trial was a mere excuse for the judge to cherry pick whatever evidence bolstered his pre-determined opinion.
One of the aspects of this case that I find disturbing is how this opinion will contribute to the division in American society and serve to undercut the credibility and legitimacy of the courts. On this note, I think that Kendall was very wise to highlight Peggy Noonan’s recent WSJ article on his blog. Walker’s decision just increases the heat on the pot which is already boiling over. This decision is an unabashed liberal advocacy essay, sweeping away the moral judgment and societal ordering of the vast majority of humanity both across time and space as “irrational”. This decision seeks to entrench one side of the culture war in the courts – overruling the will of the people to impose the liberal morality on the rest of the country by coercive judicial fiat. This is a gross distortion of America’s polity, and it will not stand the test of time – no matter how successful it is in the short term.
I like: “gender no longer forms an essential part of marriage.”
Since, up until recently gender was essential, the legal privileges and responsibilities of marriage were based on marriage being between a male and female. Therefore if this essential part is no longer essential, all the legal privileges and responsibilities of marriage should be re-evaluated.
How can something have an essential part at one time and not an essential part at another and still be the same thing? Isn’t the judge using the word essential inaccurately?
The judge has not a whit of understanding of what the essential part of marriage is so how could he possibly know what forms it?
To say that changes in the division of duties and labors within marriage somehow justifies saying gender does not matter is a reach I for one would never attempt.
The State has an interest in giving special consideration to a sexual act which has a very good chance of producing children (barring medical problems or use of artificial birth control). It has every good reason to support this sexual act taking place within the confines of a stable loving committed relationship. And the sex act which produces children is greatly dependent upon gender.
The State does not say you can not have sex with the person of your choice. But it does not see any reason to give all sexual relationships equal support, endorsement and privleges.
#10, But the state doesn’t privilege the sex act as you describe. The sterile and the old get the same support/endorsement for their marriage as the young and fecund.
But the State acts on the assumption that most marriages will produce children. And since the norm for that is a man and woman any other forms of marriage that are in that form get the State’s ok. No matter the fertility of the couple involved.
But the State’s endorsement of a marriage between, say, an 80 man and a 75 year old woman is not just a unintentional side-effect of the state’s interest in procreative marriage. If that were the case we ought to pass a law defining marrage as between two sexually productive healthy heterosexuals and get the freeloading non-breeders off the bus.
I think procreation is part of this issue, but it is also a reflection of the state’s interest in creating interdependent care-giving units–in the cases of the old and sterile (heteros) marriage is a good because it clarifies roles during medical crises, helps with property disposition upon the death of one partner, allows for the pooling of resources so as to purchase property (most often a home), etc.
Basically, the judge defined marriage in the state of California down to California’s Domestic Partnership law.
I wonder if, based on the judge’s use of the Constitution’s Equal Protection Clause for his findings, a heterosexual couple under the age of 62 could be granted a domestic partnership if they applied for it?
Based on what this judge wrote, the only essential thing for a marriage is the desire to give someone benefits.
Dan, No I did not mean it is an unintentional side effect. I said it follows in form the essential component of marriage which is one man to one woman. It does not necessarily follow in function.
The State is perfectly free (as outlined in law) to bolster and protect the roles you speak of even when they occur outside of marriage. I have no problem with that. And I do happen to believe the sexual relationship of the parties should not be a deciding factor. So in that case gender does not matter.
I know I am arguing it poorly (very tired today) but I hold that gender in marriage does matter. It matters because the State does have a valid and compelling interest to privlege that relationship which is most likely to produce offspring. Because the form of this relationship is one man and one woman that is what the State sanctions for marriage. Whether that means there actually will be children is not something the State can second guess. It can only say that marriage to be legit must follow that essential form.
A potter can form as many vessels that hold water as he wishes. He can make cups, vases, bowls, pitchers. He can drink out of any or all of them. Anyone could pretty much tell these things were designed for such a purpose. Even if I empty out the water and use the cup for a pencil holder. The form tells me what the function was meant to be. And using it as a pencil holder would not necessarily negate the purpose or very beauty of the vessel.
However if the potter decides to make plates and platters and trays and tries to convince me that they are designed to hold water I just would not believe him. And that is sort of how I view same sex marriage.
Within the marital unit male and female may produce offspring. Male and male or female and female never can. The latter two must go outside the marital unit in someway.
Why does gender make a difference? Because evolution, working on the principle that what works shall work, and what doesn’t work won’t, has made gender fundamental to all the higher life forms. Yin and yang is not simply some clever Taoist gimmickry useful for tickling the cool and the stoned. It is a pictorial representation of one of life’s invariable fundamentals. You cannot put two yangs together. Is this difficult? Subtle? Nuanced? Hidden except to the initiate? And this man is so biased that he says that gender does not make a difference?
When the utterly obvious becomes the obscure, can we appeal to the Constitution for clarity? Has it occurred to no one that the Constitution is not, and was not meant to be, the only well from which men must drink? He needs to go to Evolution and tell Her his opinion and ask for a ruling. She will ask him for a precedent in the great volume of Universal Law, and then she will say, “I am the precedent, the ruling, the consequence. Your appeal is to my Judge of the Supreme Court. Good luck.” Can you hear her dark laughter now?
Of course, people are free to argue all day about whether or not people should or should not be gay, but the reality on the ground is that there are plenty of same-sex couples, and many of them are raising children together (having obtained said children in any of a number of ways). It seems reasonable to have some provision for a legal relationship, so that the interests of children and survivors can be dealt with an organized way. Refusing to address the reality of same-sex couples won’t make them go away. Laws need to reflect reality and not the ideal. No one thinks we have divorce laws because divorce is super-awesome and should be encouraged, but they do create a more orderly society where people’s interests are protected if they fail to live up to the ideal of one man-one woman for life.
RE: “Refusing to address the reality of same-sex couples won’t make them go away.”
The assertion is incoherent and irrelevant, of course, easily demonstrated through the following equally incoherent and irrelevant assertions.
“Refusing to address the reality of [adult-sibling] couples won’t make them go away.”
“Refusing to address the reality of [life-challenged] couples won’t make them go away.”
“Refusing to address the reality of [polyamorous] couples won’t make them go away.”
“Refusing to address the reality of [insert any minority sexual orientation here] couples won’t make them go away.”
[blockquote] [Our] divorce laws . . . create a more orderly society where people’s interests are protected if they fail to live up to the ideal of one man-one woman for life.[/blockquote]
The trick here is analyzing “they fail to live up to the ideal”. Some failures are inadvertent but many are foreseeable and culpable. If divorce laws are neutral (or become more neutral) to this distinction, they not only protect the innocent and naive but may insulate the negligent and high-handed.
That’s the reality.
I think Franck is all over the place here. He cites Plato (“the moral norms that govern marriage are embraced by the pious not because they are mysterious commands of an inscrutable divine will, but because they are rationally knowable as good in themselves, and for this reason find support in the dictates of faith as well”) but then skips out on the hard work of explaining why the “moral norm” (which I assume for him means “two heterosexuals of opposite sex”) are a “rationally knowable†good that is rendered invalid by the inclusion of a category of people heretofore not within the “moral norm.”
I want to read a critique of this decision that explains how hetero couples are hurt by this, because that seems to be a key in civil rights legislation–can extending a right help more people? If so does the good outweigh the bad? Allowing blacks to drink at whites-only water fountains was a good extension of rights, and the fact that some whites had their feelings hurt because they no longer had race-exclusive water-fountain privileges was not a compelling enough reason to stick with the tradition of separate water fountains, moral norms of the times notwithstanding.
Franck shows his hand in his final paragraphs: “That Judge Vaughn Walker evidently cannot grasp what an effrontery his opinion is to the faith, the morals, and yes, the feelings of the vast majority of his fellow Americans is the final irony of his ruling in Perry v. Schwarzenegger.” The author’s feelings have been hurt. It is all through his essay, the sense that he is personally offended by gay marriage (“sophistical knavery” “one is being mugged by a progressive” “odor of illegitimacy†). Having accused Walker of fallacious reasoning, Franck’s argument, finally, rests on his own sense of outrage, not a careful explanation of the reasons this ought not be done. Mumbling that marriage is “a historic civil and moral institution that has never hitherto been thought to have been built for [gays]†isn’t reasoning, it is sulking.
#19, note OBTAINED, not CREATED. Start there to plumb the depths of why same-sex couplings are not and cannot be marriage and should not legally be recognized as the same.
#19, the legal relationship is already in place. This is what civil partnerships are for. Because they exist, marriage is not a necessity for acquiring those benefits. And because they exist, we have the opportunity to assert marriage’s distinctive nature, that it is a spiritual bond which is outside the control of civil law. And this is the way it should be, isn’t it? Larry