Supreme Court marriage rulings shift American government tradition

We have always been a nation whose government serves by the consent of the governed, with separate and enumerated powers, states’ rights, rule of law and all that. Things have been ‘evolving,’ in popular parlance. With the Supreme Court rulings on marriage this week, we got a paradigm shift from self-government to ‘the tyranny of the majority,’ though that needs clarification to understand the meaning of “majority”, the way most of the language we’re using these days could benefit from clarification.

So just to recap quickly, John Adams, Alexis de Tocqueville and John Stuart Mill all referred to this term, roughly to mean ‘those who control the levers of power’, in my shorthand translation. Lord Acton put it thus:

The one pervading evil of democracy is the tyranny of the majority, or rather of that party, not always the majority, that succeeds, by force or fraud, in carrying elections.
—The History of Freedom in Antiquity, 1877

It’s apt, as Pope Benedict found it to be in his address to the UN General Assembly in 2008 warning about the consensus of the few in power not necessarily representing what’s best for the people they govern.

Which gets us to this week’s Supreme Court ruling.

There is much to unpack here. Some quick picks for first analysis:

NRO editors were succinct.

The Supreme Court declined to rule that every state in the country must recognize same-sex marriage, but do not be fooled. Five justices have taken the position that there is no rationale other than hostility to homosexuals for defining marriage as the union of a man and a woman. When they believe the time is right to issue a more sweeping ruling, they will. This issue will no longer be one on which democratic deliberation is allowed.

There’s the throwdown. They decided a pair of cases, one involving Prop 8 and one involving DOMA. There are reams of commentaries to digest, but here’s a blast of clarity:

Justice Anthony Kennedy, writing for the four Democratic appointees and himself, argues that the motivation for the law was a “bare congressional desire to harm a politically unpopular group.” The Court is not saying merely that supporters of the historic understanding of marriage are wrong, or even merely that this understanding runs afoul of the Constitution (in some unspecified way: As Justice Antonin Scalia’s dissent notes, Kennedy’s opinion is hard to pin down on the question). It is saying that the supporters bring nothing but bigotry to the discussion.

This follows the type of wording Kennedy has used for at least a decade, so it didn’t surprise Court watchers though it dismayed a segment of them.

But here’s an essential point:

The real argument for continuing to treat marriage as the union of a man and a woman is that marriage and marriage law exist to channel sexual behavior in a way that promotes the flourishing of children. They exist, that is, to solve a problem that does not arise in same-sex unions: that heterosexual sex often gives rise to children. They exist to uphold the ideal that children need the mother and father who created them to stay in a stable relationship together. Recognition of same-sex marriage means that the institution is no longer about those things.

That just stated the reasons for marriage law and the State’s interest in it. It also revealed the stark reality that marriage is what the consensus defines it as now.

This, I think, is important:

What should have mattered in court was that weighing that question is not their business. Justice Samuel Alito’s dissent got it right. “Same-sex marriage presents a highly emotional and important question of public policy — but not a difficult question of constitutional law,” he writes. The Constitution is neutral on whether governmental recognition of same-sex marriage will undermine the institution of marriage, strengthen it, or have no effect at all; it does not contemplate the question.

We could come to a full stop right there. But let’s move into another analysis piece about what the Court did, by the authors of ‘What Is Marriage?’

Here’s the least reported fact about yesterday’s rulings on marriage: the Supreme Court refused to give Ted Olson and David Boies, the lawyers suing to overturn Prop 8, what they wanted. The Court refused to redefine marriage for the entire nation. The Court refused to “discover” a constitutional right to same-sex marriage. Citizens and their elected representatives remain free to discuss, debate, and vote about marriage policy in all fifty states. Citizens and their elected representatives still have the right to define marriage in civil law as the union of one man and one woman.

So those of you who believe in that had better go for it, because the window is closing. Because as the NRO editors concluded…

The justices have not yet decided that we who disagree are to be permitted no influence whatsoever on the country’s marriage laws, but the clock is ticking, and this Court has no patience for self-government.

Some of my expert guests on radio this week have said justices, particularly Kennedy, are just waiting for the case to be brought that will give them cause to redefine marriage for the entire nation. And inevitably, it will.

But in the meantime, consider what those who want that redefinition are after. Dr. Paul Kengor puts a fine lens on it, one that bears reflection. All other arguments aside for the moment, marriage re-definers are after fatherless or motherless families, if children are involved at all. And that’s something we should all be concerned about. We all used to be, not that long ago, as Kengor points out.

In a speech back in 2008, President Barack Obama was emphatic in championing fatherhood:

“We know the statistics – that children who grow up without a father are five times more likely to live in poverty and commit crime; nine times more likely to drop out of schools and 20 times more likely to end up in prison. They are more likely to have behavioral problems, or run away from home or become teenage parents themselves. And the foundations of our community are weaker because of it.

He added:

“Of all the rocks upon which we build our lives, we are reminded today that family is the most important. And we are called to recognize and honor how critical every father is to that foundation. … If we are honest with ourselves, we’ll admit that what too many fathers also are is missing – missing from too many lives and too many homes. … We need fathers.

Amen to that. Who would disagree? Back then, no one. So, as Kengor asks…

…why are President Obama and the liberals suddenly pushing relentlessly for fatherless families – or, more specifically, for a new form of American families that are fatherless?

The answer, of course, is gay marriage. With their sudden embrace of gay marriage, a massive shift not only within America, American culture and human civilization, but also within the Democratic party, liberals/progressives nationwide are – whether they realize it or not – simultaneously advocating a redefinition of family that embraces fatherless ones. Think about it: married female-female parents will be households without dads.

Which used to be point – fatherless households – on which liberals and conservatives agreed. It was to be avoided whenever and however possible, because of the importance of fathers.

Kengor already cited Obama on this in 2008. Now he unifies – or universalizes – the message.

In 1984, President Ronald Reagan described fathers as beacons of “strength and well-being” who are responsible for “leadership and direction and teaching them integrity, truth and humility.” He added, “Every father rises to his tallest stature as he selflessly cares for his family, his wife and his children.”…

A decade later, such sentiments were consistently reinforced by Democratic president Bill Clinton, who understood the toll delivered by fatherless homes…

That principle remains unchanged. What has changed, however, is liberals/progressives’ fierce acceptance and advancement of gay marriage. In this rapid push, they are jettisoning this national consensus on fathers, demanding a form of parenting that excludes fathers. As for those who disagree with their new paradigm, they are derided as cruel, thoughtless bigots, with no possible legitimate reason for their unenlightened position.

Actually, what today’s liberals are advocating is far more radical than that. They are pushing not only for fatherless families but also, conversely, motherless families. Think about it: married male-male parents (the other half of gay marriage) will be households without moms.

Everyone reading my words knows that mothers are utterly irreplaceable. That’s a statement of the obvious…

Why would anyone, let alone a country or culture, want to open the door for a reconstitution of parenthood and family that, by literal definition, excludes mothers?

So implied in all this is the whole category of human beings whose rights aren’t as often advocated for, because they don’t have such powerful, well funded and well connected advocates. The children.

As President Obama said in 2008, if we’re honest with ourselves, we’ll admit that children need fathers. Yes, if we’re honest. They need fathers, and mothers.

The trials of marriage

The US Supreme Court hears opening arguments on same-sex marriage law Tuesday. It’s been on trial for years.

But it’s ramped up lately as never before. In January, the French held a massive rally in Paris that stunned parts of the world unaware of the sentiment there for natural marriage and family values. Especially since they saw it coming in the last election.

Extending the right to marry and adopt to same-sex couples was one of President Francois Hollande’s electoral pledges in campaigning last year.

However, once he tried it…

Hundreds of thousands of protesters took to the streets of Paris on Sunday decrying the French president’s plan to legalize same-sex marriage and adoptions.

They converged near the Eiffel Tower, chanting and waving flags, posters and balloons.

“I do not personally agree with gay marriage as I am a Christian and believe what the Bible says about marriage being between one woman and one man for a life time,” said CNN iReporter Oluwasegun Olowu-Davies, who shot video of the march with his phone.

“If your lifestyle doesn’t allow you to conceive, there is a reason,” he said…

Cardinal Andre Vingt-Trois, the archbishop of Paris, voiced his opposition at a meeting of French bishops in Lourdes last year.

Opening up marriage to same-sex couples “would be a transformation of marriage that would affect everyone,” he said.

At the same time, failing to recognize gender difference within marriage and the family would be a “deceit” that would rock the foundations of society and lead to discrimination between children, he said.

Other religious groups in France, including Muslims, Jews and Buddhists, have also expressed their concern over the draft bill, and more than 100 lawmakers are against the legislation, according to CNN affiliate BFMTV.

Hundreds of mayors around the country have also voiced their opposition, which has won wide backing from gay rights advocates.

But it passed anyway, at least the lower house of Parliament. Now it has to pass the Senate, and activists have turned out again.

Hundreds of thousands of French citizens rallied in Paris on Sunday, March 24, to protest a government plan for recognition of same-sex marriage.

Legislation allowing for homosexual unions passed easily in the lower house of parliament, supporters of the measure are confident of approval in the Senate, and the bill has strong support from President Francois Hollande. But defenders of traditional marriage, hoping to generate strong public resistance, organized the second massive demonstration for their cause.

Police estimated the crowd in Paris at 300,000. Organizers dismissed that estimate as wildly inaccurate, saying that well over 1 million people had participated.

The demonstration was peaceful until some participants tried to turn onto the Champs Elysée to approach the presidential palace, and clashed with police blocking that route. The police used tear gas to disperse the crowd, prompting protests from many bystanders who had not been involved in the confrontation with police, but were affected by the tear gas. Thousands of families, many including young children, had been involved in the rally.

This is remarkable.

The movement against gay marriage has given France a new celebrity in the form of its public face, Virginie Tellenne, a Parisian socialite who goes by the name of Frigide Barjot.

“We want the president to deal with the economy and leave the family alone,” Tellenne said Sunday.

There’s a small handful of fair and accurate reports on this in the press. Most major media were transparently tendentious.

Der Spiegel at least got the caption right that hundreds of thousands of people took to the streets to protest government action to legalize gay marriage. But their headline, ‘Anti-Gay Activists Clash With Police’ needs a little scrutiny. First of all, why are they labeled “anti-gay activists”? Easy answer is because anyone who opposes an agenda of abortion or same-sex marriage or other social policy that uproots a civilizational ethic is labeled as “anti” something, to help shape public opinion against them. And second, why the clash with police? Who started that? Headline doesn’t say. But it was tear gas, fired at the crowd by police when the peaceful demonstration turned onto the Champs Elysee.

This report said

Protesters hoisted signs reading “Don’t touch marriage, take care of unemployment!” and “Everyone is born from a man and a woman”.

That’s the case the March for Marriage organizers plan to make on their first ever US rally on the Mall of Washington Tuesday, similar to the annual March for Life in January each year on the anniverseary of the Roe v. Wade legalization of abortion across the states.

The Court will consider two cases.

The justices are first hearing a constitutional challenge to California’s ban on same-sex marriage. A second day is devoted to the federal Defense of Marriage Act, which denies federal benefits to same-sex couples married in the nine states where such unions are legal.

The two cases fall into the category of the truly momentous. So much so that Supreme Court advocate Tom Goldstein literally pounded the table when speaking to law students last month. “This is special,” he declared, observing that there were no cases like it when he was in law school.” This will be a “foundational decision” that “is going to be decided for centuries.”

On one side of the argument in these cases is the idea of equality. On the other, traditional notions of how society has ordered itself.

That’s a bit disingenuous, but clever. The movement to redefine marriage has been very successful in marketing their ideas as civil rights, human rights, matters of equality. Americans are sensitive to recognizing equality and conferring it, though the matter of abortion and its denial of human rights is another issue for another day.

This isn’t about equality in terms of human rights. Loyola Marymount Philosophy Professor Christopher Kaczor points out in his book The Seven Big Myths About the Catholic Church the flaws in that argument.  Here’s just one snip:

Same-sex marriage advocates will object that even though homosexuals can and do currently get marriied, they cannot marry in accordance with their sexual orientation–for example, a gay man cannot marry a man. Same-sex marriage secures the right of people to marry in accordance with their sexual orientation.

However, if there is a right to marry in accordance with sexual orientation, then a bisexual should be allowed to marry both a man and a woman at the same time. Thus, bigamy would have to be acceptable.

He’s right. In other words, moving the goal posts and changing the rules makes future changes unstoppable, as unthinkable as they are at this time. And they aren’t unthinkable by some groups watching all this to see what might be possible for them in the future.

The politician who masterminded the gay marriage campaign in Holland says that “group marriage” is now being discussed in the country.

Boris Dittrich, a former Dutch politician, gave a video interview about how he successfully introduced gay marriage. He said, “There is now a discussion in the Netherlands that sometimes people want to marry with three people and maybe even more.

“But that’s the beginning of something completely new and that will take a lot of years I guess.”

How recently were societies saying the same thing about where we are now?

Navy changes course on marriage instruction

They’re getting mixed messages. Which reflects the mixed signals when the federal government declares a federal law indefensible, though it remains an enforceable law. What?

Back in February, the Justice Department was ordered to stop defending the Defense of Marriage Act, when President Obama found it no longer defensible.

Earlier this week, the Navy began preparing chaplains to conduct same-sex marriages.

That didn’t last long. A day later, that branch of the military changed course.

This is about political correctness, but more.

The Defense of Marriage Act (DOMA)–which governs not just the military, but every federal entity–states that marriage is the legal union of a man and woman. Now that the ban on homosexuals in the military is overturned, the White House is trying to enlist the troops in its war on DOMA. And if the administration won’t uphold the law, then it shouldn’t surprise anyone that the President would order the military to ignore it.

When the Navy’s letter surfaced on the Hill, Rep. Todd Akin (R-Mo.) fired off a formal inquiry, asking officers to explain the sudden change. The Navy not only defended its position–but expanded it. As if opening up the base facilities to gay “marriage” wasn’t illegal enough, the corps now insists that chaplains who refuse to marry homosexuals have to find someone who would. “If the chaplain declines to personally perform the service, then the chaplain MUST facilitate the request per SECNAVINST 1730.7D.” That’s a big leap from simply allowing the ceremonies to take place. As much as the weddings violate DOMA, the referral order is a direct assault on the freedom of conscience.

And, for the time being, that continues to be protected by existing laws.

There are many confused people involved in these stories. Let’s keep looking for clarity.