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Does Marriage Suck? Massachusetts and beyond.
NRO ^ | November 25, 2003, 1:58 p.m. | William F. Buckley

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.


TOPICS: Constitution/Conservatism; Editorial; Government; US: Massachusetts
KEYWORDS: goodridge; homosexualagenda; judicialoverreach; williamfbuckley
I think this decision hit a lot of people like a cold glass of water in the face. It was fun to be avant garde, but noone believed it would get this far. What happens next will be interesting and perhaps, depressing.
1 posted on 11/25/2003 11:20:49 AM PST by .cnI redruM
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To: .cnI redruM
Does Marriage Suck? Massachusetts and beyond.

Under the cirumstances, a somewhat unfortunate choice of words.

2 posted on 11/25/2003 11:25:04 AM PST by quidnunc (Omnis Gaul delenda est)
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To: quidnunc
It was meant to inflame. A true call to action. However, I think focusing on the gay angle distorts the real question.

IMHO the question we need to address in a meaningful way is whether legislatures or judges are the true makers of law in the US.
3 posted on 11/25/2003 11:27:11 AM PST by .cnI redruM (The social agenda of the Democratic Party reminds me of a creepy XXX fetish show.)
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To: .cnI redruM
INTREP - SOCIOLOGY
4 posted on 11/25/2003 12:55:15 PM PST by LiteKeeper
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To: .cnI redruM
Ok - I have to ask! :) What is the background on the name that you chose on FR? Isn't Murder Inc. a mob-related group? I ask with total respect. Just have me curios, that all. Thanks! (Gorgiboy's Wife)
5 posted on 11/25/2003 12:59:28 PM PST by gorgiboy
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To: gorgiboy
Background? I don't need no stinkin' background!
6 posted on 11/25/2003 1:01:06 PM PST by .cnI redruM (The social agenda of the Democratic Party reminds me of a creepy XXX fetish show.)
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To: .cnI redruM
Oh my. I'm sorry. Didnt mean to upset you at all. My question was just out of curiosity. Again - just wanted to know how the name came about. My apologies. (Gorgiboy's Wife)
7 posted on 11/25/2003 1:04:57 PM PST by gorgiboy
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To: .cnI redruM
"IMHO the question we need to address in a meaningful way is whether legislatures or judges are the true makers of law in the US."

Maybe it's time to put the 'Enumerated Powers Act' on the front burner. Revise it to include the judiciary.

8 posted on 11/25/2003 1:06:55 PM PST by Eastbound
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To: gorgiboy
I know. I was doing my mobster imitation. If you've ever seen The Regulators, there's a scene where they get asked for their badges.

They say "Badges? We don't need no stinkin' badges."
9 posted on 11/25/2003 1:07:39 PM PST by .cnI redruM (The social agenda of the Democratic Party reminds me of a creepy XXX fetish show.)
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To: Eastbound
Sounds good to me. Maybe it was time to do that in the 70's.
10 posted on 11/25/2003 1:08:30 PM PST by .cnI redruM (The social agenda of the Democratic Party reminds me of a creepy XXX fetish show.)
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To: .cnI redruM
Whhhheeeeewwwww! Thought I was in deep trouble there. Teach me never to pry again. :)
11 posted on 11/25/2003 1:08:35 PM PST by gorgiboy
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To: .cnI redruM
IMHO the question we need to address in a meaningful way is whether legislatures or judges are the true makers of law in the US.

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.

Shalom.

12 posted on 11/25/2003 1:12:38 PM PST by ArGee (Scientific reasoning makes it easier to support gross immorality.)
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To: .cnI redruM
Better late than never. I think the Act needs another clause requiring government to cease re-defining words that have very specific meanings when legislating and adjudicating. It's confusing. Even Clinton didn't know what the current definition of 'is' was.

ENUMERATED POWERS ACT LINK

13 posted on 11/25/2003 1:15:37 PM PST by Eastbound
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To: ArGee
Ethics as a basis for law. Hmm... Kant would admire your assertion. The problem would occur when ethical direction interfered with practical or political expediency.
14 posted on 11/25/2003 1:18:39 PM PST by .cnI redruM (The social agenda of the Democratic Party reminds me of a creepy XXX fetish show.)
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To: Eastbound
The disease is spreading. Now the Mass. short-circuit court doesn't know what the definition of 'marriage' is. The next court most likely will change the definition again to include group sex with life-sized Barbie Dolls and penguins.
15 posted on 11/25/2003 1:24:00 PM PST by Eastbound
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To: .cnI redruM
Ethics as a basis for law.

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.

Shalom.

16 posted on 11/25/2003 1:24:13 PM PST by ArGee (Scientific reasoning makes it easier to support gross immorality.)
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To: ArGee
Ethics are the vehicle by which morality is exercised. Much in the same way, law is the vehicle by which a society expresses it's values.
17 posted on 11/25/2003 1:26:40 PM PST by .cnI redruM (The social agenda of the Democratic Party reminds me of a creepy XXX fetish show.)
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To: .cnI redruM
Ethics are the vehicle by which morality is exercised.

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.

Shalom.

18 posted on 11/25/2003 1:30:44 PM PST by ArGee (Scientific reasoning makes it easier to support gross immorality.)
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To: quidnunc
Under the cirumstances, a somewhat unfortunate choice of words.

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.

19 posted on 11/25/2003 1:31:54 PM PST by hunter112
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To: ArGee
A morality could be absolute, but not be universaly accepted. Forcing that morality into law, prior to it's universal acceptance, will probably lead to a donnybrook of ethic proportions. (As the mASS. Supreme Court is about to discover.)

Win over the skeptics first, then codify your morality as law.
20 posted on 11/25/2003 1:33:37 PM PST by .cnI redruM (The social agenda of the Democratic Party reminds me of a creepy XXX fetish show.)
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To: hunter112
Did anybody seem to notice that he did not favor calling for a Constitutional amendment? He seems to think DOMA will hold the line.

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.

21 posted on 11/25/2003 1:47:44 PM PST by NutCrackerBoy
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To: .cnI redruM
A morality could be absolute, but not be universaly accepted.

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.

Shalom.

22 posted on 11/25/2003 2:04:20 PM PST by ArGee (Scientific reasoning makes it easier to support gross immorality.)
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To: .cnI redruM
instaed of sucks, maybe........blows?
23 posted on 11/25/2003 2:55:29 PM PST by isom35
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To: ArGee
The problem is that judges are taught that ethics and morals are two seperate standards. Just because you are ethical, it does not make you moral.
24 posted on 11/25/2003 3:06:53 PM PST by longtermmemmory (Vote!)
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To: .cnI redruM
That was lifted from the Treasure of the Sierra Madre.
25 posted on 11/25/2003 5:52:57 PM PST by LibertarianInExile (When laws are regularly flouted, respect of the law and law enforcement diminishes correspondingly.)
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To: NutCrackerBoy
He called for the Massachusetts legislature to amend the Commonwealth's Constitution so that it sidesteps the SJC's ruling.

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.

26 posted on 11/25/2003 7:11:21 PM PST by hunter112
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To: hunter112
I must have missed that one.

No, I was extracting that, probably erroneously, from this particular column. WFB's columns usually illuminate more than they advise.

27 posted on 11/26/2003 6:16:05 AM PST by NutCrackerBoy
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To: longtermmemmory
The problem is that judges are taught that ethics and morals are two seperate standards. Just because you are ethical, it does not make you moral.

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.

Shalom.

28 posted on 11/26/2003 6:19:15 AM PST by ArGee (Scientific reasoning makes it easier to support gross immorality.)
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