I also felt intellectually disengaged from and unimpressed by the arguments brought by either side, even when I agreed. A couple of things interested me mildly, like the issue of standing. As a legal layman I found it, oh, odd that the apellants in Hollingsworth were found to have none, while those in Windsor were. In both cases the executive powers (the state of California and the U.S. Justice Department) refused to defend the respective laws at issue, and so someone else stepped up to do the work for them. It simply boggles the mind that the people of California were left with no one to defend their democratically enacted referendum. It might leave one prostrate in wonder, amazement and outrage if one had not already realized something of singular importance: in a democracy the truth does not always gather the most votes. It did on Prop 8's initial ballot, but those weren't the votes that counted. The Supreme Court is just a tiny democracy. They vote on their decisions. Justice Kennedy had the votes (in Lawrence and Windsor) to enshrine an evil. And so he did.
Which leads me to the other interesting thing: Kennedy has a 'thing' about homosexuality. I don't mean that he is one but for some reason feels compelled to defend their proclivities. I don't mean just their dignity as individuals, but their entire lifestyle: their relationships, their so-called "families," and the sex that underpins it all. But I don't have anything to say about it because I don't feel like playing shrink to the bar.
Sometimes I like revisiting old posts, just to see if I had anything on the ball. Here's a passage from one of them called "Sodomy Goes Straight," now ten years old, and in which I bemoaned the result in Lawrence v. Texas:
When I said at the beginning that this ruling renders all sex the same, some will object that I go too far. And they have a point. Even Justice Kennedy, perhaps sensing the breadth of the swath his intellectual thresher is cutting through the autumnal, once-verdant field of our moral culture, does a little dancing in the barnyard, his belated attempt to assure us that victims of rape, sexual child abuse, and incest will not find the umbrella of the law's protection withdrawn: "The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter." Could this last refer to marriage? But how will he refuse them? The "liberty" he has granted is based purely on a right to privacy and on mutual consent. He finishes his thought: "The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives," (the Texas law, of course, allowing them their private lives but not the public respect, which is what I suspect he finds most irksome.)
But Mr. Justice Kennedy, many homosexuals want to make marriage a practice "common to the homosexual lifestyle." And since, in marriage, sexual intimacy (not formerly of the kind you have now given constitutional protection) seems to come with the territory, on what principle of law - not of sociology, or psychology, or of any other field of inquiry - but of law will you deny to them this most sublime of human bonds? And don't appeal to the law's reliance on our nation's "history and tradition", for you have already conceded, in your defense of personal "autonomy," that there is no such thing, or at least that no one tradition is better than any other: "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." I rather imagine that an Andrew Sullivan will have no trouble fitting marriage into his concept of existence and the mystery and meaning of human life. All he needs is another man to give consent. How will you say no?
I am not optimistic that he will, for here is the most concise rendering of his judicial philosophy I was able to find, and in his own words: "As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom." How will he say no?
I never read Scalia's dissent in that case, but it turns out he was thinking along the same lines, wondering of the majority's reasoning "what justification could there possibly be for denying the benefits of marriage to homosexual couples?"Similarly, regarding Windsor, he says: "By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition." I've seen a number of conservatives advising against that option to despair because, technically, the Court did not impose same-sex marriage on the nation, but left the matter standing in place, leaving discretion to the states, and forbidding discrimination only at the federal level against those marriages contracted in states where it is legal. But no sooner were we thus assured than in fact the challenge "to a state law restricting marriage to its traditional definition" is now happening in Michigan. And the Court's decision in Hollingsworth has effectively reintsituted the issuance of gay marriage licenses in California. Kennedy and his co-conspirators against our "history and tradition" have now thoroughly set the stage.
One of the tragedies of our time is that we no longer know what sex is. We indulge in it, use it as a form of recreation, occasionally of procreation (often without benefit of marriage), but we have no sense of its purpose. Whatever of that purpose is left is essentially pornographic, since we have no way of explaining what is right and wrong, except when it involves children, rape or incest. Consenting adults can pretty much just use their imaginations. Should you try offering such an explanation, no one will listen. In fact, you'll be ridiculed and accused of hating an unjustly victimized minority, or of suffering from a mental disorder that usually ends in the word "phobia."
Justice Alito is commended at the American Spectator for his dissent in Windsor, in which he concludes that "Any change on a question so fundamental should be made by the people through their elected officials." He characterizes the opposing views of marriage as "the conjugal view" - which believes in "channeling heterosexual intercourse into a structure that supports child-rearing" - and the "consent-based view" - which sees marriage instead as "the solemnization of mutual commitment — marked by strong emotional attachment and sexual attraction — between two persons." Says the article's author: "...because the Constitution codifies neither view and is silent on both, Alito believes that the majority imprudently went out of its way in endorsing the latter vision of marriage yesterday. The Court should have instead left the debate to the people." I believe Scalia's view is similar if not the same.
Let's ask a question: why is the constitution silent on marriage? Could it be that the Founders saw no reason to address it because at the time of the country's formation everyone knew what it was? Since they had not the gift of prophecy, of peering into a more enlightened future, was it also possible that, given the apparently immutable nature of the institution, they might have experienced a rather pronounced moral trepidation (that humility mentioned by Alito) at the mere thought of tinkering with something very likely of divine origin?
So where did this idea of marriage come from which, at the time of the constitution's drafting, was so taken for granted? It was an idea that prompted the U.S. government to refuse Utah admission to the Union until polygamy was renounced. It was an idea that through most of human history was not the preferred one. If not widely practiced, polygamy was in fact widely allowed. So from where did the federal government get this idea that it ruthlessly imposed upon the Mormons? As my children used to say, you get three answers and the first two don't count.
But we're beyond reason now. We've gone insane, and the reputedly wisest and smartest people in the country, those charged with administering the medicine of sound judgement, of protecting our constitutional integrity and guiding the goodness of our laws into an uncharted future, are running the asylum, even though they're as crazy as the patients. We're beyond reason, beyond faith, beyond reverence for creation's goodness, and thus beyond law itself. The law is what we say it is, not what it really is. Incapable of gratitude for that creation's order because adhering to it lays a cross upon us, we cannot admit that some matters are beyond the law's reach because they are beyond change, that no Court or citizen should ever venture to alter them by one jot or tittle.
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