Skip to comments.Does Marriage Suck? Massachusetts and beyond.
Posted on 11/25/2003 11:20:49 AM PST by .cnI redruM
The swirl of opinion that came in after the ruling of the Massachusetts court tells its own story, which is that the judicial arm has achieved a moral standing not even dreamed of by Cotton Mather, or mere popes and rabbinical councils. Witness the failure of the two major political parties to take corporate positions on gay marriage. The Republicans, reflecting the 75 percent of their members who disapprove the ruling, have criticized it but have not gone so far as to call formally for a constitutional amendment. There is talk of an amendment, but talk also of the unwisdom of traveling in that decisive way. And on the other side, 52 percent of Democrats disapprove of gay marriage, but there is certainly no talk of constitutional intervention by any Democratic candidate for president. This is substantially owing to the training we have had over three generations to the effect that the court is the moral arbiter of behavior. Democracy's temple.
There are lines of a political character drawn. The Defense of Marriage Act (1996) specifically relieves the states from Full Faith and Credit obligations in the matter of same-sex marriages. Andrew Sullivan, the Catholic gay activist writer, hails the Massachusetts decision warmly and informs his considerable constituency that all that is established by the Massachusetts ruling is that in that state, gay marriage must be sanctioned. This does not mean that Utah has to sanction it, because the Defense of Marriage Act successfully makes its way across the divide of Article IV of the Constitution. We have then an opportunity for the full bloom of federalism: gay marriages in those states that go along, forbidden where forbidden.
A qualifying legal point derives from the opinion itself. What the court narrowly (4-3) ruled was that the language of the State Constitution of Massachusetts simply forbids the kind of distinctions that are enforced by limiting marriage to two-gender participants. The Commonwealth has 180 days in which to contrive language that is not discriminatory, but-is. The Constitution might say that marriage is a union between two people who can create a third person. A different approach would be to distinguish between the nature of benefits conferred on couples who take on the burdens of raising children, and those who do not; though there would surely arise a Philadelphia lawyer conjoining with another Philadelphia lawyer to find something constitutionally objectionable in the very idea.
Dramatic revisions are coming up from the fever swamps of the anthropologists, who are saying: Why not just forget the institution of marriage? After all, 26 percent of Americans live alone, and about half of those who marry, proceed to get divorced. So why not a market solution to the whole business? Let the parties who decide to cohabit for more merely than a night, or even a month, devise an agreement of sorts having to do with how property should be distributed if they broke up. Oh yes, if there were children, how would custody be arranged? All the business about paying the bills and visiting rights-couldn't a thoughtful arrangement be made here? Suited to the different personalities of the participants? "In the last five years," says Carol Sanger, who teaches family law at Columbia Law School, "there's been much less written on 'why do we need marriage, it's an oppressive relationship,' and much more on alternative forms of marriage."
Indeed we do not know how exactly the major political parties will come down on the question. David Blankenhorn, president of the Institute for American Values, ruminates that what we know as the institution of marriage originated about 5,000 years ago in Mesopotamia, "when males were brought into the [mother-child] family." But that was done, back then, without reference to the Massachusetts Supreme Judicial Court, and its status is therefore properly in abeyance.
Under the cirumstances, a somewhat unfortunate choice of words.
Maybe it's time to put the 'Enumerated Powers Act' on the front burner. Revise it to include the judiciary.
I think an even bigger question is whether law is based on an absolute morality, or whether it is based upon the whim of whoever makes the law - the legislature, the courts, the dictator, whoever.
Are ethics and morality the same? I didn't think they were.
My question was, is there a moral law, like a physical law, to which we are bound whether we agree or not. Or, is the moral law subject to the legal system of the nation in question?
If the latter, then I don't see much difference between leaving it up to the judiciary or to the legislature. It makes a difference in the timing, but not the end result.
OK. Given that definition, care to weigh in on the question? The answer as to whether morality is absolute would have a strong impact on whether it (or its implementing philosophy) should be used as a basis for law.
I sincerely doubt that someone as erudite as Bill Buckley would have entitled this article so.
Did anybody seem to notice that he did not favor calling for a Constitutional amendment? He noted a curiousness that given the situation in both parties, that no one was pushing it, but other than that, I didn't see a great urging on his part. Since I consider him a master of the English language, if he had wanted to urge an amendment, there would be no doubt in any mind that was what he wanted.
He seems to think DOMA will hold the line. I think the only reason that Clinton signed DOMA was his wink and a nod to his supporters on the left that it was for show only, and that it would not survive Constitutional challenge, and it was a necessary tactic to win the 1996 election. I'm curious as to why Buckley does not address this possibility.
WFB called for the easiest and most direct solution to the conundrum posed by the Massachusetts SJC. He called for the Massachusetts legislature to amend the Commonwealth's Constitution so that it sidesteps the SJC's ruling. Then that Constitution will continue to discriminate isomorphically with the way it already does.
I concur, and actually posit that it is absolute. I think the way we discover the moral law is by observation. Thus, one of the most meaningful tools in discussing the moral law, and in any effort to codify the moral law into the national law, is history.
If you look closely and carefully, you will notice those who support our current slide into depravity want to separate us from history. If they will allow a discussion of history at all (and they try not to allow it) they attempt to assert that we have changed.
Even Vicky Gene Robinson, now Bishop of New Hampshire, wants us to believe that we know more than the writer of Leviticus or the people who accepted that document as a sourcebook for law.
But if we know anything from 2000 years of recorded history, we know that Homo Sapiens hasn't changed a bit.
I must have missed that one, will go back and check his columns. I was wondering if he thought it was worth the effort, and what he proposes about the MA marriage certificates that will be issued in the time it takes to amend the state Constitution.
No, I was extracting that, probably erroneously, from this particular column. WFB's columns usually illuminate more than they advise.
If you believe Thomas Sowell's argument here you might accept that the problem is that judges are too smart to let the law be as simple as it is.
I'm sure someone will post the article as its own topic on FR very soon, if they haven't already.