Sunday, June 26, 2011

Reflections on the setback in New York


Okay, I suppose at this point, I should make some grumbling noises about the State of New York passing (and Gov. Andrew Cuomo signing) the gay marriage bill. Supposedly there was an amendment adopted requiring stronger religious protections … but the bill was voted on almost as soon as the amendment was released, before anyone could take a good look at the legal language. I have no doubt that, when the legal analysts actually take a look at it, the language will be equivocal, capable of bearing the worst interpretations possible.

Okay, I’m not happy about it. But then, I didn’t expect a victory for the “culture of life” team. It would have been nice, but New York was a blue state long before colors were assigned (what would Richard Nixon have thought about conservative states being called “red”?). And of course, there’s always three or four RINOs on the floor, who talk pro-life and pro-family during the election cycle yet manage to find reasons to vote with the liberals when the issues become final votes. (“Crypto-liberals?” “Stealth Democrats”?) But we’re not England, so party members aren’t required to vote the platform.


So why am I not that fussed about it? First, I’m not fussed because it’s always possible to challenge the law through constitutional amendment or by referendum, as happened in California and Maine. A poll done for the National Organization for Marriage by QEV Analytics showed that 59% of New Yorkers felt the issue should have been settled by the voters, and that 57% agreed that marriage should only be between a man and a woman. Which is why the gay-marriage proponents didn’t want it to go to a popular ballot, since gay marriage has yet to survive a plebiscite.

Second, more states are turning to their state constitutions to define marriage traditionally. As of this date, thirty-one states have either laws or constitutional amendments defining marriage traditionally. Article V of the Constitution provides for adoption of amendments by convention of two-thirds of the states, which can then be ratified by either state legislatures or state conventions. Although adoption by convention has never been tried, we are close enough to the two-thirds point (thirty-four states) that it can be considered — one delegate per electoral vote, perhaps?

My concern is hardly for the democratic process, so far as it’s allowed to operate. My concern, rather, is the judicial system, which over the last 50 years has become more and more of an anti-democratic ratchet.

Remember that Massachusetts had gay marriage more or less imposed on them through Goodridge v. Department of Public Health (SJC-08860, 2003), even though the Massachusetts constitution doesn’t recognize “judicial review” and gay marriage is still technically illegal there. (It’s recognized because Mitt Romney caved … which should give us pause about voting for him in 2012.) Moreover, the US District Court for Northern California ruled against Prop 8 in Perry v. Schwarzenegger (C 09-2292), prolonging the battle there.

Our argument has always been this:

Since marriage is by design and by history between men and women and has at its core reproduction, defining it as such legally doesn’t deprive anyone of the equal protection of the laws under the Fourteenth Amendment. A homosexually-oriented man is still legally entitled to marry a woman (whether she be straight or lesbian), though his orientation may make a true, sacramental marriage difficult — not necessarily impossible, just difficult — so long as all other laws surrounding marriage are observed.

Historically, there is no absolute right to marry; the state has always been free to deny marriage on grounds the people of the community feel to be good and sufficient. Even now, all states posit minimum ages of consent, forbid polygamy and penalize incestuous marriages. This is because it’s always been within the interest of the state to foster families in a way that maintains the growth and stability of the community.

At the same time, there is no legal requirement to marry. The state is free to offer incentives for marriage, because of the state’s interest in fostering families; it does not follow, however, that a person who chooses not to marry is harmed by not receiving such benefits.

The gay marriage argument predicates itself on an absolute right which doesn’t exist. It predicates an absence of a legal privilege which is in fact not absent but rather one not taken advantage of due to sexual preferences. Because there is no absolute right, and no legal requirement, the state should not be required to allow a man to “marry” another man simply because he does not want to marry a woman; biologically, historically and anthropologically, that’s not a real marriage.

One seeming weakness in the argument is that elderly couples are allowed to marry. Historically, though, it’s a blip on the screen; a hundred years ago, the average man and woman didn’t live long enough to marry after menopause, though there were very occasional “May-September romances”. But it also strikes me as a kind of composition fallacy, similar to arguing that, because some torpedoes are duds and others are training rounds, therefore torpedoes aren’t meant to sink ships … they just do every now and again.

However, the real weakness is that, if enough justices on the SCOTUS bench want to make marriage restrictions — any marriage restrictions — unconstitutional, they’ll choose any line of argumentation that allows them to do so. Results first, premises to follow. And if SCOTUS does create a right to gay marriage out of whole cloth …

What then? Will we have enough strength to push successfully for a constitutional amendment? Or will enough people lose heart that the proposal dies on the floor? And will it be sufficient only to take gay marriage permanently off the table, or will we need to protect other aspects of marriage and family life through that instrument?

One thing I know: History is not a one-way force. Just ask the Arians. In fact, ask any Communist about historical inevitabilities … and watch them squirm.