I Believe

Michael Knaapen and his husband John Becker react outside the US Supreme Court in Washington DC on June 26, 2013. By Mladen Antonov/AFP/Getty.

by Andrew Sullivan, The Daily Dish, 6/26/13

Some final thoughts after so many years of so many thoughts. Marriage is not a political act; it’s a human one. It is based on love, before it is rooted in law. Same-sex marriages have always existed because the human heart has always existed in complicated, beautiful and strange ways. But to have them recognized by the wider community, protected from vengeful relatives, preserved in times of illness and death, and elevated as a responsible, adult and equal contribution to our common good is a huge moment in human consciousness. It has happened elsewhere. But here in America, the debate was the most profound, lengthy and impassioned. This country’s democratic institutions made this a tough road but thereby also gave us the chance and time to persuade the country, which we did. I understand and respect those who in good conscience fought this tooth and nail. I am saddened by how many failed to see past elaborate, ancient codes of conduct toward the ultimate good of equal human dignity. I am reminded of the courage of a man like Evan Wolfson who had the vision and determination to change the world.

But this happened the right way – from the ground up, with argument, with lawsuits, with cultural change, with individual courage. I remember being told in the very early 1990s that America was far too bigoted a place to allow marriage equality – just as I was told in 2007 that America was far too bigoted a place to elect a black president. I believed neither proposition, perhaps because I love this country so much I knew it would eventually get there. I trusted the system. And it worked. From 1989 (when I wrote the first case for this on the cover of a national magazine) to today is less than a quarter century. Amazing, when you think of how long it took for humanity to even think about this deep wound in the human psyche.

So to those who are often tempted to write off America’s ability to perfect its union still further, to lead the world in the clarity of its moral and political discourse, and to resist the pull of fundamentalism when it conflicts with human dignity, let me just say: I believe.

Because I have seen.

 

Lizz Winstead to NOM: You Are Not Doctors!

Legal Precedents That SCOTUS May Consider in U.S. v. Windsor and Hollingsworth v. Perry.

As promised in my last post, here is a list of several Supreme Court decisions that may have some bearing on the two cases that the Court will begin hearing next week (March 26): U.S. v. Windsor and Hollingsworth v. Perry. This list is culled from Robert R. Reilly’s article (reviewed below) and from Paul McGuire’s response.

Griswold v. Connecticut (1965): Invalidated a law prohibiting the sale of contraceptives to married individuals.

Eisenstadt v. Baird (1972): Invalidated a law prohibiting the sale of contraceptives to unmarried individuals.

Boddie v. Connecticut (1971): Prohibited fee barriers to divorce—barriers that might seem desirable if the right to marry were tied to the state’s interest in responsible marital procreation.

Roe v. Wade (1973): The right to privacy encompasses a woman’s decision whether or not to terminate her pregnancy.

Carey v. Population Services International (1977): Held that it was unconstitutional to prohibit the sale of contraceptives to minors, the advertisements or displays of contraceptives, and the sale of contraceptives to adults except through a pharmacist. (Wikipedia)

Zablocki v. Redhail (1978): Residents will child support obligations may marry. (The right to marry is separate from procreation, childbirth, child rearing, and family relationships.)

Turner v. Safely (1987): Incarcerated prisoners, even those with no right to conjugal visits, may marry.

Lawrence v. Texas (2003): Overturned Bowers v. Hardwick (1986), which had declared Alabama’s law against sodomy constitutional.

Robert R. Reilly Not Optimistic About SCOTUS Decisions on Same-Sex Marriage

Robert R. Reilly

Robert R. Reilly, writing for Crisis Magazine (“The Logic of the Court and the Prospect of Homosexual Marriage”, 3/19/13), finds grievous fault with a succession of Supreme Court decisions made over the past 40 years—decisions that have separated sex from procreation in civil law and prepared the way for the ante-penultimate horror that is same-sex marriage. (Polygamy and bestiality follow.) His article is timely, as the SCOTUS will next week begin hearing two major cases testing the constitutionality of laws prohibiting such marriages. (U.S. v. Windsor, testing the 1996 Defense of Marriage Act, and Hollingsworth v. Perry, testing California’s Proposition 8)

There’s an undeniable tendency among conservative Catholics to rely heavily on the authority of long-dead white Christian males when arguing everything from sex to statecraft. The more distant in time, the more the authority is respected. In their world, Thomas Aquinas’s “Summa” has never been surpassed, and should rightly form the basis of both legislation and jurisprudence in modern pluralistic democracies. Dean Hansen has put it nicely:

It’s part of the tight, intellectual box that freezes inquiry and stifles forward momentum.  Imagine where we’d be today if we rejected Einstein because he contradicted Copernicus, or rejected any medical advice that contradicted Galen of ancient Rome.

Paradoxically, I would encourage them in this tendency, because I have observed that it leaves them ill-equipped to argue their cases in courts of law, where the opinions of expert witnesses (who can be cross-examined) are greatly favored over quotations from dead savants.

Reilly quotes 18th-century English legal scholar William Blackstone to remind us that proscriptions against sodomy have a noble pedigree.

Ronald Coleman

Sodomy? Reilly has gotten it wrong right off the bat, and doubly so. First, lesbians don’t generally practice sodomy, many heterosexuals do, and many homosexual men do not. Second, and more important, same-sex marriage (the subject of his article) is not about sodomy or even necessarily about sex. It’s about love, companionship, and commitment.

If attorneys defending DOMA and Prop 8 enter the Supreme Court expecting to talk about the evils of sodomy, they will have a rude awakening: the Supreme Court decision in Lawrence v. Texas (2003) assures our freedom from government intrusion into our bedrooms, and in 1987, the Court declared that sex is not a necessary component of marriage (Turner v. Safely: incarcerated prisoners may marry, even if they have no right to conjugal visits.)

Reilly squanders hundreds of precious keystrokes telling us how abjectly wrong Lawrence v. Texas was: It “cast aside millennia of moral teaching,” it demonstrated “the intellectual poverty of the legal profession,” and it showed “no grasp of the relationship between morality and the law.”

Now, if we can just persuade the attorneys defending DOMA and Prop 8 to lecture the Supreme Court on the law and “explain” to them why legal precedents are in error, we’ll have a clear path to victory.

William Blackstone

Reilly is very big on tradition, as long as it pre-dates the sexual revolution of the sixties and seventies. Roman law, the English Reformation, 18th-century legal philosophy, the Bible—all are good. But don’t mention modern science, medicine, sociological and psychological research, or secular law and jurisprudence. They are only passing fashions parading self-importantly against the millennial backdrop of Judeo-Christian history.

For many secular progressives, the word  “tradition” is value-neutral but highly suspect when it is used to justify practices that are patently unjust. People who have spent their lives steeped in theology may have a hard time understanding this. To them, a practice grounded in millennia of tradition is self-evidently moral, because it has stood the test of time. Take genocide, for example … or slavery.

Like many other contributors to Crisis Magazine, Reilly has a hard time “hearing” the word “tradition” in the way that Supreme Court justices and policy-makers do. Ironically, he is using it to assert an authority superior to theirs, while they are well-aware that it is used this way.  And here, having already accused the court of casting aside millennia of moral teaching, he gives a slight, momentary nod to Justice Kennedy’s reasoning in the Lawrence v. Texas decision:

The Court stated that, “the fact that the governing majority in a state has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.” That may be well and good, but at least such a tradition should invite an examination of whether the “practice” in question is, in fact, immoral. [emphasis mine]

Sodomy sculpture from Lincoln Cathedral

Reilly himself clearly thinks the practice in question is “immoral,” because, as he said earlier, it has long been regarded as “a gravely disordered act” and has been proscribed throughout history. So Reilly’s own reasoning would have only led the Court in circles.

Reilly is right about one thing. “The Court,” he writes, “has already done much to prepare the ground work for the legalization of homosexual marriage.” Though he condemns the relevant rulings variously as “extraordinarily misconceived,” (Lawrence v. Texas) and “an act of barbarity” (Roe v. Wade), he at least does provide a useful overview of them, which is then supplemented by one of the commenters, Paul McGuire. I will list these in my next post.

Reilly makes no secret of his low opinion of the Court’s rulings on contraception, abortion, and intimate sexual practices. These rulings are indeed logically compelling, he says, but only if one accepts a premise that is “insane,” i.e., that marriage and sex can be separated from procreation.

Brethern and sistern, let us fervently pray that attorneys arguing to uphold DOMA and Proposition 8 next week will adopt arguments similar to the ones Robert R. Reilly has so eloquently presented. Amen.

John Eastman of NOM Puts His Foot in It.

By “Chief Roberts,” Eastman is referring to U.S. Supreme Court Chief Justice John Roberts, who will be deliberating later this month on the constitutionality of California’s Proposition 8 and the federal Defense of Marriage Act (DOMA). Read the full story here.

BREAKING: American Sociological Association Files Amicus Brief Opposing Both Prop 8 and DOMA

This is really exciting news. The American Sociological Association had not joined the early amicus brief filed jointly by major medical and social welfare associations in the Hollingsorth v. Perry case (Prop 8), to be considered by the U.S. Supreme Court later this month. Now, they have filed one of their own for both the Prop 8 case and U.S. v. Windsor, which concerns the Defense of Marriage Act (DOMA). It puts the nail in the coffin of the Mark Regnerus study.

The argument, as outlined in the brief’s table of contents, is unequivocal:

Scholarly consensus is clear: Children of same-sex parents fare just as well as children of opposite-sex parents.

The research claimed to undermine the consensus either does not address same-sex parents and their children or is mischaracterized.

The Regnerus study does not support conclusions regarding the impact of being raised by same-sex parents.

The studies cited by BLAG, the Proposition 8 proponents, and their amici do not address same-sex parents and therefore do not undermine the consensus.

The Ultimate Anti-Gay-Marriage Ad

Austin Ruse and Robert P. George Get Bogged Down in Anti-SSM Arguments (Again)

Austin Ruse

Austin Ruse, writing for Crisis Magazine, explains why the U.S. Supreme Court should uphold both the Defense of Marriage Act and California’s Proposition 8:

In a Harvard Law Review article, … [Robert] George, [Ryan] Anderson, and [Sherif] Girgis answer the question “what is marriage?” They describe two competing views; one they call “conjugal”, and the other “revisionist.” Allowing for the revisionist view “can cause corresponding social harms. It weakens the rational foundation (and hence social practice) of stabilizing marital norms on which social order depends: norms such as permanence, exclusivity, monogamy.”

George and his colleagues argue that marriage can only be “conjugal”, that is, a “comprehensive union joining spouses in body as well as in mind, it is begun by commitment and sealed by sexual intercourse. So completed in the acts by which new life is made, it is especially apt for and deepened by procreation and calls for that broad sharing uniquely fit for family life.” Such a comprehensive view of marriage is still available to sterile couples but not for homosexuals.

So here’s what Mr. Ruse would have us believe: Opposite-sex marriage (OSM), in its current incarnation in many parts of the world, is conjugal, not revisionist. And same-sex marriage (SSM), wherever it is practiced, is revisionist and not conjugal. Let’s unpack that a bit.

Here’s Merriam-Webster’s definition of “conjugal:” of or relating to the married state or to married persons and their relations. From Latin conjungere, to join, unite in marriage.

Robert P. George

Ironically, it appears that Mr. George and his associates would like us to buy a revisionist definition of “conjugal,” one that appropriates the term for opposite-sex couples while denying it to same-sex ones. Do we have to remind Mr. George and Mr. Ruse that marriage between homosexual couples is a fait accompli in about a dozen countries and in as many U.S. states? In those jurisdictions, the definition of “marriage” has expanded, and with it the definition of “conjugal.” The horses are out of the barn. The gin has already gone into the tonic. Canada, France, the U.K., Argentina, Spain, and the Netherlands, New York, Massachusetts, Connecticut, and Washington State are highly unlikely to reverse course on this issue.

And since when is the term “revision” so negatively loaded? Editors “revise” documents with the aim of improving them, not compromising them. George claims that the revisionist view “weakens the rational foundation of stabilizing marital norms on which social order depends: norms such as permanence, exclusivity, monogamy.” Weakens? Why not “strengthens?” Do we detect a bias here? What is his basis for claiming that same-sex unions are not just as “permanent, exclusive, and monogamous” as opposite-sex ones? With divorce rates at around 50% in the U.S., heterosexuals have not set the bar very high. And what if SSMs proved to be more permanent, exclusive, and monogamous than OSMs? Would either Mr. Ruse or Mr. George renounce OSM as an institution?

But even assuming that the word has purely negative connotations, is anyone trying to “revise” or downgrade the meaning of Mr. Ruse’s marriage or Mr. George’s? An even more pertinent question is whether the marriage template that they consider normative is not itself also a revision of earlier ones. And a quick scan of the history of marriage tells us that it is. That history is so well-known by now that it doesn’t bear repeating here.

If Messrs Ruse and George are trying to lay a sturdy foundation for their argument, bubble-wrap and jello are not good choices for a material. But let’s go on.

Assuming that SSM is indeed revisionist and that revisionism is “bad” in a world resistant to change of any kind, is it fair to describe the “revisionist” understanding of marriage as “essentially an emotional union, accompanied by any consensual activity?” Reducing all the variety and richness of marriage to a single one of its elements is a gratuitous insult to same-sex married couples the world over. And the characterization is patently false, all the more so because it appends the phrase, “accompanied by any consensual activity.” “Any??” Is George suggesting that “revisionist” ideas of marriage allow ANY consensual activity whatsoever? This is the old slippery-slope scare coded into the phrase with a single three-letter word. But the U.S. Supreme Court is deliberating on SSM, not on incestuous marriage or polyandry or marriage with one’s most cherished farm animal. Hopefully, the Supremes will recognize this for the red herring that it is.

George’s panegyric to marriage (the second paragraph I cited above) would describe an SSM very well except for the part about “making new life,” which is pivotal to the Catholic concept. However, he stops short of asserting that marriage should be unavailable to those who cannot or choose not to procreate, though the Church itself requires that there be some “openness” to the possibility of procreation. George’s slight but significant pull-back from Catholic teaching on this point may be a sign of realism on his part: he knows that any argument based explicitly and overtly on Catholic doctrine will be shot down in the SCOTUS. The problem for his modified position (i.e., allowing for the possibility of non-procreative marriage) may open the door to non-procreative marriage between homosexuals, at least from the Court’s point of view. Only by keeping procreation in the equation can George argue against SSM, but in doing so, he limits his audience to fellow conservative Catholics. In other words, he is in a no-win situation.

Ruse acts as though he hasn’t understood what George just said, for he adds: “Such a comprehensive view of marriage is still available to sterile couples but not for homosexuals.” Or maybe he thought he needed to firm it up a bit. George’s reasoning doesn’t justify such a conclusion, and Ruse doesn’t explain what he means. SCOTUS would certainly want to know. Pro-SSM attorneys could drive a semi into such a gaping hole in the argument.

The rest of Ruse’s article is plagued by the same sorts of circular reasoning, red herrings, false premises, semantic slights of hand, and non sequiturs. If either Mr. Ruse or Mr. George imagines they have something to contribute to the defense of DOMA or Proposition 8, would somebody kindly inform them that they’re nowhere ready for prime time. If the SCOTUS judges are half as astute as Judge Roy Walker (whose court overturned Proposition 8), gays and lesbians have nothing to fear.

Finally, I cannot resist calling out Mr. Ruse’s operatic hyperbole at the very end of his article: “[SCOTUS] could declare  homosexual marriage the law of the land. … This would signal the end of any kind of marriage culture in the United States.” Here the beautiful but beleaguered heroine jumps off the castle wall / dies in the arms of her protector (the Church?) / swallows the poison / impales herself upon a sword / is impaled upon a sword by a gang of rampaging homosexuals hell bent on destroying not only the traditional family but Civilization As We Know It. Following the heroine’s death, opposite-sex marriage is outlawed and only homosexuals may marry. Children may only be raised by same-sex parents, who instruct them about the joys of gay sex night and day. Oh weh! What have we come to?

Gay Marriage: Plato Would Not Have Approved. Nor does Robert P. George.

by Doughlas Remy

Robert P. George

A trio of highly credentialed gay-marriage opponents, including Princeton professor Robert P. George (co-founder of the National Organization for Marriage and author of the Manhattan Declaration) have recently published what many social conservatives now regard as the definitive summa of reasoned argumentation against gay-marriage—a pure distillation of incontrovertible truths on the subject. What is Marriage? Man and Woman: A Defense is in fact so skillfully crafted and so disarmingly civil that many sympathetic readers, haunted by accusations of homophobic and bigotry, will at long last feel vindicated. It’s not about homosexuals, the Trio tells us, and it’s not about rights. It’s not even about religion.

It’s about marriage!

So you can breathe a sigh of relief. If you were under the mistaken impression that opposition to gay marriage was driven by animus, fear of change, or religious prejudice, the Trio are here to set you straight. Representing the finest and clearest thinking in the field, they have finally made a case so impeccably objective, so dispassionate, even secular (!), that the Supreme Court justices deliberating on DOMA and Proposition 8 this Spring cannot fail to be impressed, even inspired by it.

It comes down to this: If you are in a same-sex relationship, the Trio wish you well, but, basically, you see, their hands are tied. It’s nothing personal, you understand. The simple fact of the matter is that you cannot “marry” each other because such a marriage is Conceptually Impossible. Conceptually. Impossible.

Now, the Trio doesn’t exactly go into this, but to understand why same-sex marriage is Conceptually Impossible, you have to read Plato and Aristotle. It’s all explained there.

Zebra-horse hybrid (not photoshopped)

You see (to start with Plato), everything in our everyday experience is but a pale reflection of an eternal idea, or essence. An actual tree is only a particular instance of “tree-ness;” its inherent nature is bound to that concept, which resides in the Transcendent Realm of Ideas. A tree is never a bush. It is always and only a tree. Anything with big and bushy leaves and branches must either be a tree or a bush. When you look at it, you will know whether it is a tree or a bush. There’s a difference, and anyone possessed of ordinary common sense will recognize it immediately as either one or the other.

Furthermore, each concept is eternal and changeless. If a new tree on the block expects to be accepted as a tree, it must conform to the concept, even if the tree regards the concept as hopelessly outdated and over-ripe for revision. Bowls today must look like bowls yesterday. They cannot have handles, like cups. They cannot be tall like vases, or shallow like plates. No cross-overs are allowed into the Transcendent Realm. Nor are ambiguities of any kind. A thing is what it is, and nothing else. A sports car is a sports car, and a truck is a truck. SUVs are Conceptually Impossible. In Plato’s time (and therefore in ours), a play is either a tragedy or a comedy. New and hybrid genres such as tragi-comedies, dramas, and dramedies are nothing more than charades, impostures! Like same-sex marriage, they are Conceptually Impossible.

With Aristotle, the idea of “purpose” is attached to these pure essences. An eye is for seeing, an ear for hearing, a mouth for… uh… eating. A knife is for cutting, not for using as a paperweight. A charger is for serving food on, not for carrying the head of John the Baptist. Never use your toothbrush for cleaning your ears, and never pee in the punchbowl. So, essentially, all things have purposes that limit the uses to which they can be put and, just to cut to the chase here, the penis and vagina were intended for one purpose only.

What purpose might that be, you may ask? Well, the Trio are here to enlighten us.

Our sexual organs are intended for procreation within the framework of conjugal union. If you were thinking that they might serve for pleasuring yourselves, you were just wrong.

How do we know any of this? Easy. It’s right there in Plato. And Aristotle.

And it should be obvious, anyway. You can tell the difference between a tree and a bush, can’t you? And you know the purpose of each? So common sense just confirms what the ancient writers said. A thing is just what it is and always has been. It can’t be something else. Point, c’est tout.

But (you may object) no serious philosopher any longer accepts Plato’s theory of Ideas or Aristotle’s teleological arguments. And you would be right, because there was a major shift in philosophical thinking in the 19th century, when the first phenomenologists began challenging the notions of fixed essences and immutable purposes. The modern world has almost entirely left these notions behind, but there is one institution that still clings to them, and that institution is grounded in medieval scholastic readings of Plato and Aristotle.

Uh-oh. Houston, I think we’ve got a problem here.

Crisis Magazine Writer Austin Ruse Sees Nazi Totalitarianism in Recent European Court of Human Rights Decision Regarding LGBT Rights

Austin Ruse

Austin Ruse, president of C-FAM (Catholic Family & Human Rights Institute) has just published an incendiary article on the paleo-conservative Catholic website, Crisis Magazine. The piece, entitled “Yet More Christians Silenced in Europe … and America,” depicts Christians (by which he means paleo-conservative Catholics) as victims of a systematic oppression rivaled only by that of the Nazis against … (of course) the Catholics! At the top of the article is a photo of goose-stepping Nazi troops. Mr. Ruse, questioned about this photo, replies that modern liberals have “pronounced authoritarian tendencies.” The Crisis Editor who chose the photo adds, “I wanted to hold up a mirror to those who seek to restrict the freedoms of Christians [paleo-conservative Catholics]. We know how thick-headed these activists are. Subtle argument doesn’t work. Since the Left perceives the Nazis as rightwingers (which they were not), it would make more of an impact ON THEM…”

I have been blacklisted from the Crisis website for challenging statements like these. However, I would be pleased if others could take up the slack. You’ll find the article here.

The European Court of Human Rights in Strasbourg, France

Mr. Ruse’s beef is with the European Court of Human Rights (ECHR), which earlier this week ruled that an individual’s religious beliefs do not trump the rights of an LGBT person and may not be used to discriminate against him or her. Mr. Ruse repeatedly distorts the facts in this case.

One of the two decisions that drew Mr. Ruse’s ire concerned Lillian Ladele, a civil registrar in London, who was dismissed from her job because she refused to officiate at same-sex partnership ceremonies after these were made legal in 2005. She claimed she was a victim of religious discrimination. The European Court of Human Rights (ECHR) decided that she was discriminating against LGBT persons—which is to say, they had been her victims.

The second case concerned another British subject, Gary McFarlane,  a counselor providing psycho-sexual therapy to couples. He refused to work with same-sex couples and was dismissed. Like Lillian Ladele, he claimed he was a victim of religious discrimination. Again, the ECHR ruled that he had discriminated against LGBT persons, not they or his employer against him.

The Court ruled that religious freedom is no ground for exemption from the law. The principle of equality and equal treatment cannot be circumvented with a simple reference to religion.

Freedom of religion is never absolute. Sikh boys in the U.S. are not permitted to carry swords to their schools, though their religion requires them to do so. In France, Muslim girls may not wear veils in the public schools.

Mr. Ruse’s rhetoric employs all the usual tropes of scapegoating. He makes homosexuals out to be like vampires (“Has that slaked the thirst of the homosexuals?” he writes.) and implies that they are atheists (“They want Christians prostrate before them.”)

Actually, most homosexuals are neither vampires nor atheists, and many of them are devout Christians of the Catholic persuasion. The aptly-named Mr. Ruse is at the very least disingenuous in framing these Court decisions as a victory of homosexuals over Christians. That is just not the case. The decisions are simply a victory of LGBTs over discrimination.

_____________________________

UPDATE, 1/31/13: National Organization for Marriage (NOM) co-founder Robert George has submitted an amicus brief in the California Proposition 8 case about to be taken up by the U.S. Supreme Court. In it, he takes a position diametrically opposed to that of the European Court of Human Rights, which declared that freedom from discrimination trumps religious freedom. In his brief, George essentially claims that religious freedom should trump freedom from discrimination. Read more here.