Posted on 12/08/2003 7:12:17 PM PST by Kay Soze
How legalizing gay marriage undermines society's morals
By Alan Charles Raul
WASHINGTON - The promotion of gay marriage is not the most devastating aspect of the Massachusetts Supreme Judicial Court's recent decision. The more destructive impact of the decision for society is the court's insidious denial of morality itself as a rational basis for legislation.
This observation is not hyperbole or a mere rhetorical characterization of the Goodridge vs. Department of Public Health decision. The Massachusetts justices actually quoted two opinions of the US Supreme Court (the recent anti-anti-sodomy ruling in Lawrence vs. Texas and an older anti-antiabortion ruling, Planned Parenthood vs. Casey) to support the proposition that the legislature may not "mandate (a) moral code" for society at large. The courts, it would seem, have read a fundamental political choice into the Constitution that is not apparent from the face of the document itself - that is, that individual desires must necessarily trump community interests whenever important issues are at stake.
These judicial pronouncements, therefore, constitute an appalling abnegation of popular sovereignty. In a republican form of government, which the Constitution guarantees for the United States, elected officials are meant to set social policy for the country. They do so by embodying their view of America's moral choices in law. (This is a particularly crucial manner for propagating morality in our republic because the Constitution rightly forbids the establishment of religion, the other major social vehicle for advancing morality across society.) In reality, legislatures discharge their moral mandates all the time, and not just in controversial areas such as abortion, gay rights, pornography, and the like.
Animal rights, protection of endangered species, many zoning laws, and a great deal of environmental protection - especially wilderness conservation - are based on moral imperatives (as well as related aesthetic preferences). Though utilitarian arguments can be offered to salvage these kinds of laws, those arguments in truth amount to mere rationalizations. The fact is that a majority of society wants its elected representatives to preserve, protect, and promote these values independent of traditional cost-benefit, "what have you done for me lately" kind of analysis. Indeed, some of these choices can and do infringe individual liberty considerably: For example, protecting spotted owl habitat over jobs puts a lot of loggers out of work and their families in extremis. Likewise, zoning restrictions can deprive individuals of their ability to use their property and live their lives as they might otherwise prefer. Frequently, the socially constrained individuals will sue the state, claiming that such legal restrictions "take" property or deprive them of "liberty" in violation of the Fifth Amendment, or constitute arbitrary and capricious governmental action. And while such plaintiffs sometimes do - and should - prevail in advancing their individual interests over those of the broader community, no one contends that the government does not have the legitimate power to promote the general welfare as popularly defined (subject, of course, to the specific constitutional rights of individuals and due regard for the protection of discrete and insular minorities bereft of meaningful political influence).
Even the much maligned tax code is a congeries of collective moral preferences. Favoring home ownership over renting has, to be sure, certain utilitarian justifications. But the fact is that we collectively believe that the country benefits from the moral strength growing out of families owning and investing in their own homes. Likewise, the tax deduction for charitable contributions is fundamentally grounded in the social desire to support good deeds. Our society, moreover, puts its money (and lives) where its heart is: We have gone to war on more than one occasion because it was the morally correct thing to do.
So courts that deny morality as a rational basis for legislation are not only undermining the moral fabric of society, they run directly counter to actual legislative practice in innumerable important areas of society. We must recognize that what the Massachusetts court has done is not preserve liberty but merely substitute its own moral code for that of the people. This damage is not merely inflicted on government, trampling as it does the so-called "separation of powers." It does much worse, for when judges erode the power of the people's representatives to set society's moral compass, they likewise undercut the authority of parents, schools, and other community groups to set the standards they would like to see their children and fellow citizens live by. Indeed, it is a frontal assault on community values writ large.
It is thus no wonder that many feel our culture's values are going to hell in a handbasket. Yet, neither the federal nor Massachusetts constitutions truly compel such a pernicious outcome. Indeed, to this day the Massachusetts Constitution precisely recognizes that "instructions in piety, religion and morality promote the happiness and prosperity of a people and the security of a republican government." It cannot be stated better than George Washington did in his first inaugural address: "The foundation of our national policy will be laid in the pure and immutable principles of private morality, and the pre-eminence of free government be exemplified by all the attributes which can win the affections of its citizens and command the respect of the world."
• Alan Charles Raul is a lawyer in Washington. This commentary originally appeared in The Washington Post. ©2003 The Washington Post.
I can walk out of my front door and knock on the doors of four heterosexual married couples who either can't or won't have children...I guess they shouldn't be allowed to marry?
You can keep ignoring that "homosexuals" as a classification are people who identify themselves based on a sexual fetish.
People who want to eat horse meat in America are prohibited from doing so by law (even though horse meat is processed for export for human consumption in America).
If the government cannot regulate what goes on in the bedroom (but can legislate how much water your toilet flows in your bathroom), why are there any age of consent laws?
We know that teens are having sex (and underage sex used to be prosecuted as statutory rape). We know that adults are having sex with teens below the age of consent and that states make exceptions in the law for "Romeo & Juliet" (and now "Romeo & Romeo") cases where the adult is within 4 years of the minor below age of consent.
Therefore the persons consenting to legal sex acts are not "consenting adults". And those who are both below age of consent are definitely not considered legally able to "consent". In rare cases (say a 14 year old and a 10 year old) it will be considered molestation or statutory rape but the difference in age (not "maturity") is no different than the exception made "later" in the underaged teens years.
These would still appear to be "morals" sex laws.
Either the government has jurisdiction there or it doesn't.
Either the government can regulate marriage or it can't.
Yeah I know, thats what the SJC of Mass said in their opinion and you're repeating of it verbatim confirms my informed opinion that neither you nor they have the power to redefine words by fiat.
But I believe you've shown yourself to be polyphobic here Luis by using the singular. Who are you to limit marriage to two people? Though I must admit your definition and the SJC's are magnanimous enough to allow a brother and sister, et al, to enter into a platonic marriage to access econoomic advvantages not currently available to them.
By the way, as usual, you countered by attacking the poster, and not addressing the actual issue.
Luis, it is impolite to answer a question with a question. But I understand your reticence to engage in debate here. You either have to extend marriage to all who are exercising their "transcendent liberty" or you have to draw lines and regulate.
I am clear where I draw the line, you evidently do not have the wherewithal to draw a line.
Small violin, tears streaming.
Here's your principle applied to a different situation.
The State of Texas outlaws the performance and/or observance/participation of all Jewish religious rites in the State. The Texas legislature defends their ban by arguing that all citizens are aqually treated under the law, as Catholics, Episcopalians, Baptists, at al. are equally forbidden to perform and/or participate in Jewish religious rituals.
Why would that be?
We are talking about one adult making the choice to marry another adult.
You really should take a refresher in the Constitution, both the US Constitution and the Texas Constitution. Start at the 1A of the US COnstitution.
Ah,yes... file this under: The Ends do no justify the Means!
More polyphobia. I think you are a repressed polysexual who is acting out against polysexuals.
Recognise that argument? :-}
The only thing you lack however, is the chalk to draw that line with.
The US Constitution guarantees that even those who you would leave on the other side of your "line" get a voice.
The mistake lies in the very fact that there is government involvement in marriage to start.
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