May 15, 2008

A Marriage of Culture and Disenfranchisement

Justin Katz

Apparently, it's time to dust off the Federal Marriage Amendment; the California Supreme Court has redefined marriage to include same-sex couples. For those who may have forgotten, the most prominent version of the FMA read as follows:

Marriage in the United States shall consist only of the union of a man and a woman. Neither this constitution or the constitution of any state, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.

As I argued at the time, the effect of this language would be to prevent the expansion of the definition of marriage to include same-sex couples and, while enabling state legislatures to grant rights to same-sex couples (a moral, even necessary, capability in some respects), to require that all civil union–type laws to explicitly grant rights to any new unions without the shorthand of referring to marriage.

That arrangement is as it should be for a changing culture because:

  1. It leaves culturally central definitions such as that of marriage to the people
  2. It allows states to acknowledge and accommodate changing life arrangements and adapting social practices, while forcing them to consider what has changed and what that change requires.
  3. If the changes effected by number 2 become sufficiently thorough — and thoroughly accepted — the amendment can be stricken to erase the legal distinction to mirror the by-then erased cultural distinction.

This process is the appropriate one because it enables our society to bring about change in such a way as to preserve that which is good and necessary in marriage, while experimenting with the expansion of its principles to other groups. Of equal importance, it arrests divisive government trends that have made all cultural battles national in scale and hinged them on the largely unelected judicial oligarchy.

Of course, the more likely course of events is for people who think they're marching on "the right side of history" to push their preferred change by any means possible, consequences be damned (or consequences be dismissed and wished away), while other people seek to avoid making ideologically defining decisions that often put them at odds with their own emotional inclinations, as well as the emotional inclinations of those whom they love and respect, thus forcing the opposing side into ever-more-defensive maneuvers, thus ensuring further cultural division and an escalation of civic hostilities.

Comments, although monitored, are not necessarily representative of the views Anchor Rising's contributors or approved by them. We reserve the right to delete or modify comments for any reason.

The average gay AIDS patient has had 1,100 lifetime sexual partners. If you think that is unhealthy for society, then perhaps we should think seriously about giving gays an alternative. Gay marriage is a possible solution.

Posted by: Citizen Critic at May 16, 2008 1:18 AM

Two questions:

1. Without conceding your statistic, of which I do not know the origin, what leads you to believe that permitting their entrance into the institution of marriage, the history of which is wholly other for them, will change such extreme behavior? (Let alone the question of what makes you think that the institution of marriage is currently strong enough to assimilate such people... again, responding purely to your statistic without entering into discussion about its validity.)

2. On what grounds to we tinker with an age-old institution for what amounts — as far as I'm concerned — to a brainstorming idea? In this post I describe a process that is, in context of your comment, the way in which society would decide to try what you suggest.

Posted by: Justin Katz at May 16, 2008 5:59 AM

You are argueing against change for the sake of tradition, which is a very weak argument. Slavery was also a tradition.

How does permitting gay marriage "tinker" with marriage for straight couples? I do not see the connection.

Part of the rational for regular marriage is to reduce promiscuity and disease. No segment needs this incentive more than the gay community. And, no disease in more serious than AIDS.

Societal sex roles for gays are "broken" in an extreme way. It's time we stopped burying our heads in the sand and pretending gays will go away.

Let's give gays incentive for what we want them to do, not for what we DON'T want them to do. This is not a wild experiment, it is common sense.

Posted by: Citizen Critic at May 16, 2008 11:56 AM

Justin, there was a time when a core belief of American "conservatives" was the fundamental American constitutional concept of federalism. Apparently, in your view, federalism is no longer a notion worth promoting. Instead of permitting each state to work out these policy issues themselves, you propose the intervention of the federal government to enforce one common definition into the family law codes of every state. And by doing so, you support a radical and activist departure from the traditional norms of American governance.

This is precisely why many intellectually honest and principled conservatives have opposed the FMA (conservative hero and former Rep. Bob Barr, author of the Defense of Marriage Act is among them). Of course, if you are a theocrat first and an American conservative only when it suits your desired end result, a results-neutral principle like federalism can be very tricky and often inconvenient.

As for your popultist throw-away line about the "largely unelected judicial oligarchy," it too reveals a distinctly un-American and ahistoric view of our constitutional scheme. (Although it is the sort of rhetoric common to those playing to the cheap seats).

The judiciary exists for a purpose in the American system of government. Central to that purpose is to check the power of the elected branches when they overstep the bounds of the constitution.

And for the record, this is hardly the case of an unelected judiciary imposing its will against that of the popular branches. The California legislature TWICE passed laws permitting same-sex marriages. The Governor of that state has pubicly supported the Court's decision.

Oh, and just to impose a few actual facts in the conversation: California Supreme Court judges must be retained in office by vote of the electorate. All of the judges on this court were overwhelmingly confirmed by the voters. It can hardly be said that they are "unelected."

Posted by: Pragamatist at May 16, 2008 1:19 PM

Citizen Critic:

You are argueing against change for the sake of tradition

No. Only by failing to exercise the imagination to understand what I'm actually saying — as distinct from canned arguments on this topic — could one possibly state this to be the case. In general, I am arguing against a change because I believe it to be detrimental to a fundamental purpose of the institution of marriage. In specific, with this post, I am arguing against making such a change without an extended public debate that forces general clarification of that which is sought and that which is granted.

How does permitting gay marriage "tinker" with marriage for straight couples?

Marriage has an irreducible meaning inherent in the complementarity of the sexes, particularly with respect to reproduction. At least you've the care to admit that only "part of the rational for regular marriage" is that which you mention, but then you treat the rest as immaterial to the discussion. I'd argue the opposite: that the stability encouraged by marriage is incidental to the more essential component of the capability, even likelihood, to create children with minimal effort and indirect intention.

Posted by: Justin Katz at May 16, 2008 11:13 PM


... there was a time when a core belief of American "conservatives" was the fundamental American constitutional concept of federalism.

Actually, my support for the FMA has always been (for the years that I've been participating in the public debate on this issue) premised on the assessment that it is the only way to ensure a federalist solution. Supporters of traditional marriage are not the aggressors, here, and the history of the past few decades of judicial activism does little to comfort that laissez faire federalism won't burn us in a way dire to society.

Try to step back and consider the inapplicability of your comment to the current debate:

The judiciary exists for a purpose in the American system of government. Central to that purpose is to check the power of the elected branches when they overstep the bounds of the constitution.

What have the elected branches done to overstep their bounds, in this case? Nothing, unless you mean people, elected and unelected, over centuries honing the definition and cultural significance of marriage.

The notion of treating same-sex relationships as tantamount to marriage is radically new, and despite the cocksurety of keyboard soothsayers (who've apparently comprehended human society in such fine detail that there can be no doubt about their views), the results of doing so are not at all certain.

My position is that allowing such decisions to be made via the judiciary is divisive and detrimental not only to social norms, but also to our entire system of governance. To put it simply, if judges can decide such things out of hand, chased up the chain to the Supreme Court, then it becomes critical (if one wishes to insert a "self" into our "governance") to ensure that national leaders will support policies and nominate judges who will toe the line.

Given the strategy of inventing "rights" — or at least fabricating their inalienability — same sex relationships cannot be defined with explicit reference to marriage because that inherently shifts the definition of the institution and raises the specter of "separate but equal."

Invidious discrimination, to the contrary, requires a comparison of like circumstances, and men and women being different (and having different capabilities in combination), same-sex relationships are not equivalent in a crucial way.

Posted by: Justin Katz at May 16, 2008 11:30 PM


You haven't given one concrete reason how gay marriage threatens traditional marriage. Yet, you seem very troubled by the concept.

Is your opposition practical, or ideological?

Let me give you another chance to evaluate this. Choose between the following. Which one scares you more:

1. Gay marriage banned. No official role for gays. All gay relationships driven underground and hidden. Anything goes. Gay bars and gay bathhouses as single purpose facilitators for pickups for anonymous hookups/ one night stands, not occasionally, but every weekend. Maybe the guys wear condoms, maybe they don't. 1,100 lifetime sexual partners for gay AIDS patients.

2. Gay marriage allowed. Giving gays a chance, just a chance, at a sane role in society. The potential of reduced promiscuity. The occasional announcement of a gay wedding or a gay divorce in the paper. Explaining to your kids that not all people choose to have children together. The sight of two men holding hands, or two women. The possibility of reduced suicide and reduced disease.

As I look at it, the choice seems obvious.

Posted by: Citizen Critic at May 17, 2008 12:14 PM


Without taking a position on whether the "practical" side of things is all that matters, let me ask what in your practical approach can't be achieved through civil unions?

Posted by: Andrew at May 17, 2008 6:57 PM

Well hey, if — as Citizen Critic's comment suggests — we're not even going to attempt to avoid logical fallacies, then replying will be simple. To wit, I prefer the second of the following two options:

1. Undermining a comprehensible legal process to manipulate courts of law in order to mandate same-sex marriages, bringing ever more pressure on warring factions to focus their efforts on the national stage, and with the near-term result being that marriage loses its meaning — as a function both of other appeals to "rights" to change the definition and of the strain that adding a promiscuous population (as Citizen Critic argues homosexuals currently represent) to an already ill institution and the long-term result that fewer and fewer children are born into married households and fewer adults take marriage seriously enough to pursue longevity, thus heralding the deterioration of our society.

2. Requiring homosexuals to leverage principles of federalism, argument, and the proof of their own behavior in order to expand and define "civil unions" to such a point that they are indistinguishable from marriage and the critical cultural mass builds to repeal the constitutional amendment that forced the slow, cultural process in the first place, thus encouraging homosexuals to figure out why they really want and need the right to marry and encouraging everybody else to affirm the underlying meaning and importance of marriage.

Posted by: Justin Katz at May 17, 2008 9:57 PM

CC, you have to remember a couple of things.
One, Justin brings the zeal of the convert to this argument. Reminding him that gay marriage poses ABSOLUTELY NO threat to his heterosexual (nor mine, nor yours) marriage goes in one ear and out the other. That dog just doesn't hunt, far as he's concerned.
Two, please don't use the H-phobe word. It makes him vewy, vewy angwy.

Posted by: rhody at May 17, 2008 11:04 PM

Ah, Rhody, what would we do without your fabulous blend of smugness and tendency to argue against strawmen?

I've stated before that my marriage will go on just fine regardless — that the threat to marriage is a general, institutional one, not a specific individual one.

One day, Rhody, you'll learn the empathy that's critical to discourse, and the world will seem as new to you.

Posted by: Justin Katz at May 18, 2008 7:38 AM


How exactly is supporting FMA consistent with federalism? It has nothing at all to do with a state judicial branch vs. elected branch argument, so I am quite lost by your defense.

That canard of "judicial activism" has been used for many years Justin. Brown v. Board and Loving v. Virginia are only two examples where folks on your side of political debate screamed "activism!"

If the courts are not empowered to protect minority rights, then they are useless.

Posted by: Pragmatist at May 18, 2008 10:41 PM

General institutional threat to marriage?
Keep rolling our them strawmen, Jus.

Posted by: rhody at May 18, 2008 11:43 PM

Pragmatist, Brown has had the ludicrous if predictable effect of making of the federal judiciary the administrator of school bussing and such. It also relied absurdly on inconclusive social scientific opinion rather than on constitutional interpretation. One might approve of its result, or not, and still find its reasoning and jurisprudence to be very weak.

On the other hand, forget the comparison and deal with the actual opinion of the four justices in the California case. Their opinion is a political statement that would best be made by individuals seeking to be elected to the state legislature or the governship. It is based on a predrawn conclusion and is not restrained by the constitution, its framework, nor the legitimate function of the judiciary.

As for Justin's remarks about the federal marriage amendment, he is correct regarding both federalism, culture, and, yes, the principles of republican governance.

See also his recent blogpost: Attitude over Policies, in he which he wrote:

One gets the sense that, for too many Westerners, the important thing isn't so much to solve problems or to make good things happen as it is to feel the right feelings and think the right thoughts.

SSMers have typically reacted to the Califiornia opinion with flagrant aplause to say that unjust means can justify unjust ends. They are ruled by by emotivism rather than justice; this is because the cause of "same-sex marriage" is not about marriage, truly, but about innoculating gay identity politics.

The particular means and ends in the California case is virtually indistinguishable from the Goodridge opinion and yet highly distinguishable from the California high court's own ruling on the anti-miscegenation law that made "interracial marriage" a felony. That law was driven by the desire to entrench racist identity politics via the misuse of marriage for a flagrantly non-marriage purpose.

Some might claim that the "same-sex marriage" version of identity politics is more benign, however, that is shown false given the corruptive influence of the SSM campaign on both the marriage culture and on self-governance.

The irony is tragic.

Pick your identity politics (racist or gay) and that alone would ignite the discovery of the predrawn conclusion that selective sex segregation and the underminingn of responsible procreation are purposes that must ride the back of the most social institution of marriage.

Posted by: Chairm at May 19, 2008 12:16 AM

Sorry fr the typoh:

Pick your identity politics (racist or gay) and that alone would ignite the discovery of the predrawn conclusion that selective sex segregation and the undermining of responsible procreation are purposes that must ride the back of marriage, which unites fatherhood and motherhod and is the most pro-child social institution we have.

Posted by: Chairm at May 19, 2008 12:17 AM


Exactly how does the California court's decision conflict with the California constitution as interpreted by that court? Have you read that Court's decision in the Perez case? Have you read any of the other cases the court relied on? Have you even read the provisions of the California state constitution at issue?

Perhaps you have already conducted as thorough a review of the precedents as did the court in its 120 page decision? Or perhaps you haven't done any of that and are simply making a personal political statement based on no understanding of the actual merits of the legal case before the court?

My guess is that neither you nor Justin have the slightest understanding of the California decisions underpinning this ruling. Consequently, your "analysis" is simply personal political griping.

Posted by: Pragmatist at May 19, 2008 10:10 AM

Perhaps the most concise answer to the question of how changing the definttion of marriage effects us all is....

"Marriage is neither a conservative nor a liberal issue; it is a universal human institution, guaranteeing children fathers, and pointing men and women toward a special kind of socially as well as personally fruitful sexual relationship. Gay marriage is the final step down a long road America has already traveled toward deinstitutionalizing, denuding and privatizing marriage. It would set in legal stone some of the most destructive ideas of the sexual revolution: There are no differences between men and women that matter, marriage has nothing to do with procreation, children do not really need mothers and fathers, the diverse family forms adults choose are all equally good for children. What happens in my heart is that I know the difference. Don't confuse my people, who have been the victims of deliberate family destruction, by giving them another definition of marriage."

Walter Fauntroy-Former DC Delegate to CongressFounding member of the Congressional Black CaucusCoordinator for Martin Luther King, Jr.'s march on DC

Posted by: Fitz at May 19, 2008 12:56 PM

I just wonder if Fauntroy would've allowed himself to be exploited by the right if King were still alive.
Talk about a guy playing the race card.

Posted by: rhody at May 20, 2008 12:04 AM


With 70% illegitimacy rates among African American's The Reverend can hardly be accused of "playing the race card". Like so many African Americans he is fighting for the very survival of his people. It was the Rev. Martin Luther King Jr. who said “all we can ultimately ask for is strong families & healthy communities”

It is the hedonism of whites & their sexual revolution that cut the legs out from under the black community just at the time they were gaining equality. It is the twisted logic of gender radicals that has kept the issue from being addressed forthrightly.

Posted by: Fitz at May 20, 2008 1:54 PM

Pragmatist, your guess is wrong and irrelevant to the point at issue.

The four justices began with a predrawn conclusion and produced a political statement to justify it.

Are you prepared to walk through the majority's opinion with me, or are you going to rely on guesses of your own fabrication?

If you are prepared, then, sayso and I will open a blogpost at The Opine Editorials for a more thorough discussion than is appropriate for this comment section.

Posted by: Chairm at May 20, 2008 2:34 PM

Fitz, did you intend to sound like Rev. Wright, or was it just an accident?

Posted by: rhody at May 20, 2008 2:56 PM

Come on rhody, that's unfair.

For you to hear that really, really, would need to *want* to hear it that way.

Posted by: Chairm at May 22, 2008 2:25 PM
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