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.
So then, we have established that homosexuals can both engage in the sexual act, and procreate.
So, what reason does the government have to disallow civil marriage licenses to same sex couples?
In this nation, we have a choice (choice being a gift from God by the way) to believe in God, to not believe in God, or to believe in some other God.
As a matter of fact, even God gave man that choice.
This discussion is about whether civil government has the legal right to deny the issuance of marriage licenses to same-sex couples, not about whether homosexuality is wrong in the eyes of God or not.
Under our Constitution, the freedom to marry, or not marry, a person...resides with the individual and cannot be infringed by the State. -Loving v. Virginia, 388 U.S. 1 (1967)
It goes without saying that the writers of those words had no problem with marriage being defined as a union between one man and one woman. Especially the bit about existence and survival. We have existed and survived with the present definition.
I claimed the law was not enjoined from treating a fertile couple differently from a sterile couple. For example, the government could offer tax benefits to couples that sexually reproduce. It currently does not make the biological distinction but it could.
What is this, a word game?
The sexual act between two persons of the same sex can never produce an offspring and that is why it makes sense to define marriage as the union between one man and one woman. This is not rocket science. This is the way it has been for hundreds and hundreds of years. Science and certain social developments have not changed the fundamental facts of life.
Men and women having sex can produce offspring. To preserve our liberties and our civilization, it is a necessity to regulate that process. Two persons of the same gender having sex cannot produce offspring; therefore we have no need to regulate it.
You act as if it is a huge coincidence when a man and a woman have sex and the result is a baby is born. Marriage is not only about procreation. Marriage is about the stability of the families into which children are born.
When once in a while a gay couple adopts a child, that is what it is, a special case. It does not render invalid the way the vast majority of people reason about marriage and children, namely in terms of a mother and a father. When a man and woman marry without any intention of having children, it does not change the fact that the reason marriage exists has to do with children.
... your crap about "society" preserving the fundamental act of procreation by defending heterosexual marriage.
In both of these sentences, you have garbled my position beyond recognition.
None of which will change one iota if same-sex marriages come into being.
The sexual act between two infertile people can never produce an offspring, the sexual act between two septugenarians can never reproduce an offspring, yet there are weddings happening over at Century Village every day.
The ability to procreate has never been a test for the issuance of marriage licenses.
Irrelevant.
The ability to procreate has never been a test for the issuance of marriage licenses.
Irrelevant.
None of which will change one iota if same-sex marriages come into being.
That has not been proven. I predicted before that litigation is sure to come regarding provisions of marriage law that "discriminate" against same-sex couples. The resolutions of these suits will transform marriage as we know it. You haven't addressed my prediction. By the way, if even one such suit occurs along these lines, that will certainly amount to one iota.
So will you concede that things will change at least an iota? Also do you concede that marriage is about the stability of families into which children are born?
The ability to procreate has never been a test for the issuance of marriage licenses.
I've deflected this argument dozens of times, including more than once on this very thread. Let me put it in full context, so that hopefully I won't have to do this again. First of all, please don't muddy the waters with insignificant exceptions to sweeping truths.
Monogamous marriage as the overwhelmingly prevailing norm and structure for families predates all of our state governments. None of the states, including Massachusetts, has ever enacted laws that have redefined marriage as anything but a union of one man and one woman.
It is fair to say every state currently requires of any couple who wish to be married that they be of opposite gender. All I am arguing is that this arrangement makes sense and we should keep it that way.
I make the case for making sense based on what role marriage has played, plays, and will play for the forseeable future in Western (and Eastern for that matter) Civilization. The stability of laws like this across generations is important. To be sure, immoral institutions like slavery that do harm are not honored just because they exist for a long time. We have justly ruled out race as a test for civil marriage, but we have rightly retained the opposite-gender test. And through many many centuries the institution of marriage has been a wonderful boon to our way of life.
The reason the opposite-gender test makes sense is that, over the huge sweep of human space and time, opposite-gender couplings are the telling ones, because their sexual relations produce children. Children born and raised in stable families do fine, by and large. After they grow up, they tend to repeat the process and that is a good thing.
Take away marriage, and you have a downward societal spiral into chaos. Do you agree?
We have established that opposite-gender couplings are the ones of real concern to the common good. True, coupling and marriage have reasons to exist outside of children. There is no fertility test for marriage and noone has advanced any reason that it would be a good idea to have one. Anyway, these extra roles of marriage do not detract from its main purpose of reinforcing a multi-generational pattern of stable families. But at the same time, what net good with respect to the purpose of marriage would be accomplished by redefining it to be the union of any two consenting adults? Practically zero. The children living with same-sex couples are as important individually as any other children, but their existence in tiny numbers does not justify this change that has the potential to roil our culture for decades.
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