Supreme Court marriage ruling is a ‘constitutionally illegitimate fiat’

The court didn’t interpret a law. It invented a right.

And it turned on the feelings and thoughts of Justice Anthony Kennedy, who wrote the majority opinion and proved to be its pivotal player. No matter how prepared the experts in jurisprudence I’ve dealt with for years thought they were for this decision, they were all stunned when it came out, so sweeping was its usurpation of judicial power and lack of recourse to history and tradition.

So historic and pivotal a moment as this requires full examination, there are so many angles and issues. For now, start with law professor Helen Alvare’s early assessment of what happened, and especially whether and how the ruling considered a largely overlooked population of people generally left out of gay marriage debates: children.

Regarding children’s interests, until the first same-sex marriage opinions began to emerge in the states, every state and the US Supreme Court had grounded marriage recognition in the state’s interest in linking children with their parents. Adults received rights respecting marriage and parenting, because they first had duties — duties to the children the vast majority of marriages produced.

Today, the Supreme Court rules instead, however, that marriage is about adults’ “defin[ing] and express[ing] their identity,” adults’ desire for “nobility,” “fulfillment,” “aspirations,” “autonomy,” “self-definition,” avoiding of “loneliness,” and desire for “companionship and understanding”. The list goes on.

Regarding children? Who have now been stripped completely out of any definition of marriage that any state is permitted to have? The majority opinion assumes that there will be trickle-down benefits for children. But of course it could offer no evidence on this point. In fact, the vast majority of children (86%)[1] reared in same-sex homes have a legal mother and father and will not be affected by the new marriage rights of the same-sex couple in their home; they were conceived in a prior heterosexual relationship by one of the now-LGBT partners. And the testimony of now-adult children reared in same-sex homes reveals their deep longing and loss respecting the absent parent of an opposite sex, even as they often loved the adults who raised them.

More on that to follow here in the days ahead, with adult children of same sex parents now speaking out in greater numbers.

As for Helen’s footnote [1], here it is:

[1] Gary J. Gates, Family Formation and Raising Children Among Same-Sex Couples, Nat’l Council on Fam. Rel.: FAMILY FOCUS, Winter 2011, at F1 [hereinafter Gates, Family Formation] (“[One research study] suggest[s] that offspring of lesbian and gay parents are more often the product of different-sex relationships that occur before individuals are open about their sexual orientation.”); GARY J. GATES, WILLIAMS INST., LGBT PARENTING IN THE UNITED STATES (2013) (providing a statistical summary of the demographics of lesbian, gay, bisexual, and transgender (LGBT) households); Ronald Bailey, “The Science on Same Sex Marriage,” The REASON FOUND. (April 15, 2013),  (“Nearly 20 percent of same-sex households . . . reported having children, and 84 percent contained children biologically related to one of the householders.”).

Links are on the Crux post of her opinion piece, which should be thoroughly read.

So should this piece by Professor Alvare.

Today’s opinion in Obergefell v. Hodges, which invents a constitutional right to same-sex marriage applicable to the 50 states, is a story of judicial pride, successful marketing by same-sex marriage groups, and the triumph of modern therapeutic individualism. It is not a legal story. It has “nothing to do with” the Constitution, as Chief Justice Roberts so accurately states in his dissent…

Roberts warned same-sex marriage advocates that they had “lost, and lost forever: the opportunity to win the true acceptance that comes from persuading their fellow citizens of the justice of their cause,” because such opportunities require legitimate democratic process, not constitutionally illegitimate fiat.

This is only the beginning of a better understanding of what’s happened here. And what is about to.

We should be able to talk about marriage

Exchanges were bad enough back when Proposition 8 was voted on in California, and again in the subsequent court appeals of it when people were yelling at the opposition and demonstrations got physically confrontational and some high profile people even got death threats. The passion and vitriol grew and spread after that. This week, when the Supreme Court began hearing arguments from both sides of the marriage divide, media coverage showed that we’re not having a debate of different views. We’re having a culture war.

Here’s a snapshot, in three parts…

Ryan T. Anderson is one of three authors of the book ‘What Is Marriage? Man and Woman: A Defense.’ Whatever our views on marriage, I strongly believe we should be able to discuss, debate, exchange and have a proper argument in the classic intellectual tradition of both stating a case and listening to the opposing argument and engaging. And in the end, respectfully agree to disagree, but with knowledge of why the intellectual opponent believes the way they do. Civil discourse. It need not be antiquated to the times of Thomas Aquinas or G.K. Chesterton. The Rev. Dr. Martin Luther King Jr. was great at it, for goodness sake.

But Anderson was the author of that book who appeared on several news programs this past week, and though he respectfully presented and defended his case, he got hammered by the opposing side, which was not only the other guest(s) on the panel, but the darned moderator.

Take for instance his appearance on CNN with Don Lemon as anchor. In all the time I’ve watched CNN, in all the heavy stories and issues and politics they’ve covered, I’ve never seen Lemon come undone as he did there.

Then Anderson was a guest on CNN’s Piers Morgan live, with Suze Orman representing the opposite viewpoint (and the audience stacked in favor of that argument). Piers Morgan wound up calling Anderson’s views offensive, intolerant and un-American.

The next day, Anderson appeared on The Blaze as part of a roundtable discussion, in which he was the minority. He held his own as usual, and this one was at least a bit more diplomatic, though that’s a relative term right now. As are many others in the marriage debate these days.

If we’re going to talk about marriage reasonably, and please let’s try that, the book Anderson co-authored is at least one good resource.

UPDATE: This American Thinker post, ‘Agree to Disagree?’ Not Any More, is spot on.

So, where does that get us as a nation? There will be those who set the agenda with loud voices and intimidation tactics, and those who keep their mouths shut — if they know what’s good for them. There’s almost a Germany-of-the-1930s feel in the air. It seems, America is spiraling downward and we all need to be concerned that there aren’t enough Dietrich Bonhoeffers to stop the momentum.

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?

Defense of Marriage

The thought suddenly occurs that whether people are defending the historically universal recognition of the dignity and sanctity of life, marriage, family or faith….they do happen to be on the defense these days.

Especially on marriage, the hottest of the hot-button cultural conflicts right now. So in that light, the same-sex marriage and civil union movement has won significantly more than the numerical uptick in states backing their agenda. Words matter, as Walter Lippman articulated so well in Public Opinion.

The president declares he no longer finds the federal Defense of Marriage Act defensible, so his Attorney General won’t be defending it in court anymore. Legislators in Illinois, New York and Rhode Island take the issue of marriage law out of the hands of voters and create new legal recognition of same-sex unions, conferring on them the same benefits of traditional marriage between a man and a woman, which the State has traditionally had a vested interest in upholding. They say it won’t infringe on rights of religious institutions, and yet it does, as the Illinois Catholic Charities adoption battle has quickly shown.

I recently had a conversation with Archbishop Joseph Kurtz, Vice-President of the US Conference of Catholic Bishops and until this year, head of the bishops’ committee for the defense of marriage and family life. He said many of the same things as in this interview. 

Bishops, the Church, and society in general need to understand the public nature of marriage. Aspects of marriage are personal and private, but it is also public, because it affects society as a whole. 

Many people assume that marriage is a right that the state can simply create. That is a dangerous direction in which to go. The majority of voters cannot create whatever rights they want. Marriage is a gift given to us by God and defined by him. We, as Catholics, must not be afraid to say so publicly.

We need to be forthright in speaking about the importance of defending and protecting the gift of marriage within our Church and society. We need to be able to speak forthrightly to our people on the importance of marriage, and make it clear that our respect for the individual should not be at the expense of marriage itself.

Archbishop Kurtz brought up the false claim that a majority of Americans now favor same sex marriage ‘rights’, and part of the marketing of that idea is that marriage is a human right open to any two people who seek it, regardless of gender or anything else.

Columnist Maggie Gallagher examines that carefully at Public Discourse.

Elites have sounded the death knell on the marriage debate again and again, but popular support for traditional marriage refuses to die. Americans at the ballot box have repeatedly shocked elite opinion by demonstrating that even in deeply blue states a majority of Americans continues to oppose same-sex marriage.

This May, a poll commissioned by Public Opinions Strategies for the Alliance Defense Fund found that 62 percent of those surveyed agreed with this statement: “I believe marriage should be defined only as a union between one man and one woman.” Fifty-three percent strongly agreed, while just 35 percent disagreed.

Yet recent polling also reflects that Americans in the mushy middle are no longer hearing much about the opposition to same-sex marriage. Their willingness to express support for a traditional understanding of marriage is starting to shift, depending on how the question is posed to them and what other questions surround the polling question.

This shift means something: when the issue is framed as one of fairness or equality, Americans are now reluctant to disagree with gay marriage, but when it is framed as a moral or family issue, they continue to adhere strongly to traditional norms of marriage.

As Ken Blackwell recently put it, marriage is not a wedge issue but a bridge issue, creating strange bedfellow coalitions never before seen in American politics across lines of race, creed, and color.

Nonetheless, the campaign to silence opposition to gay marriage by reframing it as illegitimate hatred or bigotry is effective: those who defend marriage as the union of one man and one woman suffer consequences.

This is true.

Donate to pro-marriage organizations—or simply to a group that supports a candidate who also happens to support marriage—or ask a sitting Congressman who opposes gay marriage to address your business group—and you will meet with threats to your economic interests and your business enterprises from those who do not see same-sex marriage as an issue about which Americans of good will can and do disagree. Instead, you will be charged with failing to realize that same-sex marriage is today’s defining civil rights issue, opposition to which marks you as a bigot outside the American mainstream…

Advocates of gay marriage are not slow to use any lever of power, including government, to impose their new morality on America. The primary goal of the existing gay marriage movement is to use cultural, social, economic, and political power to create a new norm: marriage equality. The governing idea behind “marriage equality” is this: there is no difference between same-sex and opposite-sex unions. If you see a difference, there is something wrong with you…

So why is marriage, the one issue that the progressive left is energetically making too radioactive even to address, also the one issue that a candidate committed to American civilization cannot evade, avoid, or downplay?

The first reason is the nature of marriage itself.

Every human society has recognized that there is something special about the union of husband and wife. Amid the spectacular myriad of relationships that human beings create, marriage is unique for a reason: these are the only unions that can create life and connect those new young lives to the mother and father who made them.

For same-sex marriage advocates to make good on their promise of marriage equality, the very idea that children need a mom and dad must be delegitimized, rendered unspeakable in polite company. Same-sex marriage represents an intellectual and moral repudiation of the idea that marriage is grounded in any human reality outside of government, that government is obligated to respect and protect. Marriage is becoming an idea at the mercy of changing fashion, without deep roots in human nature.

Several days ago, I had a conversation with the new head of the bishops’ Committee for the Defense of  Marriage, Oakland Bishop Salvatore Cordileone. Another prominent and clarifying voice of the church in the public debate over not just marriage law, but the nature and definition of marriage.

He engaged some of the same points he made here, because they need to be repeated often.

Our people need to understand what’s really at stake here, and that’s the very concept of marriage itself. Is it a relationship to be defined by adults for their mutual benefit and enjoyment? Or is it a relationship to bring children into the world and to provide them with the best possible context for their well-being and education?

If it’s first and foremost about children, then we’ll want children to be connected to their mothers and fathers…

The optimal situation for children is to be raised by the man and the woman who brought them into the world in a loving, committed, stable relationship.

Many studies show the role of the father figure — just the presence of the father figure in the family — is especially critical. Children need that. When they don’t have it, they long for it.

As someone wiser than I put it, when a child is born, the mother is sure to be nearby. There’s no guarantee the father will be nearby. Society needs a cultural mechanism to connect fathers to their children, and that mechanism is marriage.

Recall the emphasis British journalist Melanie Phillips put on the social consequences of missing fathers, analyzing the recent outburts of violence on the streets of London.

For most of these children come from lone-mother households. And the single most crucial factor behind all this mayhem is the willed removal of the most important thing that socialises children and turns them from feral savages into civilised citizens: a father who is a fully committed member of the family unit…

The result is fatherless boys who are consumed by an existential rage and desperate emotional need, and who take out the damage done to them by lashing out from infancy at everyone around them. Such children inhabit what is effectively a different world from the rest of society. It’s a world without any boundaries or rules. A world of emotional and physical chaos.

Bishop Cordileone told me that the person he referred to as “wiser than I” in his social insights (above) was Maggie Gallagher. Her commentary is provocative in the way that thinking needs to be provoked, and falsehoods dispelled.

Far from being a neutral or pro-liberty position, same-sex marriage amounts to a government takeover of an ancient and honorable institution. Here, there are deep similarities philosophically between the abortion and gay marriage movements. At the heart of each movement is the belief that by re-jiggering words, elites change reality itself. A human life can be redefined as a cluster of cells. Marriage can be remade to mean whatever the government decides. Reality itself can be re-mastered to accommodate sexual desires.

But in truth, government cannot create life, and did not create marriage, and government has no business redefining either…

The stubborn common sense of the American public in resisting same-sex marriage, even in the face of the mainstream media’s approval, provides a platform for presidential candidates to seize, and thereby not only resist a radical transformation of the American tradition, but also help build a culture committed to a core American idea: moral truth exists, and our rights (including our right to marriage) are not gifts of government, but are grounded in and bounded by Nature and Nature’s God.

They’re all saying the same thing, updating a biblical exhortation: Be ready to make a defense for what you believe. And if you aren’t so sure anymore what you believe, the US bishops are providing plenty of good resources to clarify.

‘The orthodoxy of sexual liberation’

Nothing like a blast of clarity in this debate.

Professor Robert George steps up again to provide that, on marriage and ideology and politics and New York.

Devotion to “sexual freedom” had been no part of the liberalism of FDR, George Meaney, Cesar Chavez, Hubert Humphrey, or the leaders and rank-and-file members of the civil-rights movement. Today, however, allegiance to the cause of sexual freedom is the nonnegotiable price of admission to the liberal (or “progressive”) club. It is worth noting that more than a few conservatives have bought into a (more limited) version of it as well, as we see in the debate over redefining marriage…

As Sherif Girgis, Ryan Anderson, and I argue in our Harvard Journal of Law and Public Policy article, once one buys into the ideology of sexual liberalism, the reality that has traditionally been denominated as “marriage” loses all intelligibility. That is true whether one regards oneself politically as a liberal or a conservative. For people who have absorbed the central premises of sexual liberation (whether formally and explicitly, as liberals tend to do, or merely implicitly as those conservatives who have gone in for it tend to do), marriage simply cannot function as the central principle or standard of rectitude in sexual conduct, as it has in Western philosophy, theology, and law for centuries.

He’s really just getting started at this point.

Moreover, one will come to regard one’s allegiance to sexual liberalism as a mark of urbanity and sophistication, and will likely find oneself looking down on those “ignorant,” “intolerant,” “bigoted” people — those hicks and rubes — who refuse to get “on the right side of history.” One will perceive people who wish to engage in conduct rejected by traditional morality (especially where such conduct is sought in satisfaction of desires that can be redescribed or labeled as an “orientation,” such as “gay” or “bisexual,” or “polyamorist”) as belonging to the category of “sexual minorities” whose “civil rights” are violated by laws embodying the historic understanding of marriage and sexual ethics. One will begin congratulating oneself for one’s “open-mindedness” and “tolerance” in holding that marriage should be redefined to accommodate the interests of these minorities, and one will likely lose any real regard for the rights of, say, parents who do not wish to have their children indoctrinated into the ideology of sexual liberalism in public schools. “Why,” one will ask, “should fundamentalist parents be free to rear their children as little bigots?” Heather’s two mommies or Billy’s two mommies and three daddies are the keys to freeing children from parental “homophobia” and “polyphobia.”

No political correctness here. Politics don’t determine what’s correct.

As orthodox sexual liberals, neither the governor [Andrew Cuomo] nor the mayor [Michael Bloomberg] believes in a conception of marriage in which marriage is normative for sexual partnering; indeed, neither believes in norms of sexual morality as traditionally conceived, even apart from any question about same-sex partnerships. Both regard “civil marriage” as nothing more than the legal blessing of romantic partnerships, and neither gives any indication of ever having remotely considered an alternative view. Both have so thoroughly absorbed the premises of sexual liberal ideology that the possibility of an alternative doesn’t cross their minds. For them, it is all a matter of “us urbane, sophisticated, tolerant, open-minded, defenders of civil rights, against those ignorant, intolerant, hateful homophobes.”

Prof. George was a guest on my radio show this week. He sounds the same in person as he does in print. Certain. Determined. Resolute.

“Let the marriage matter be put to the ballot in state after state,” he said, emphatically. “Because when the people deliberate on the issue, they have always come down on the side of traditional marriage.” In 31 out of 31 times it’s been put to the vote, he reminds me.

Which brings up an interesting point he made on the show. In response to a question I asked him about the Gallup reports that from May 2010 to May 2011, poll results seem to reflect Americans are edging toward more approval of same-sex marriage, from a slight minority last year to a slight majority this year.

“The only poll that counts is the one voters take at the booth,” said Professor George. “If the Gallup poll and other polls that say a majority of Americans favor same-sex are correct, why don’t same-sex marriage backers want it on the ballot?”

He’s right. They don’t.

I asked him if they preferred to circumvent the electorate by taking the issue to the politicians in state legislatures. “What they really want is the courts,” he said. “It’s easier for the movement to work through the courts for same-sex marriage to be instituted through judicial fiat.” But he reminded me that the judges who did that in Iowa were thrown out the next time voters had the chance to express their will.

I asked Prof. George if he was surprised by the New York vote, and he said what was most surprising was that New York Republican leadership let that vote even go forward. “It was against the will of the Republican base. We asked them to exercise their legitimate authority, and they weren’t faithful to their morally conservative base. We’ll hold the Republican leadership responsible for this and will work to get them replaced in the next election.”

Especially Mark Grisanti. Who was elected with the help of some money and influence of the National Organization for Marriage, running on the principle of upholding traditional marriage laws. And then flip-flopped. “It was a grotesque betrayal of those who put him in office,” said George. “Grisanti has to be voted out, he needs to go, immediately. We need to repeal this law, but first vote out the group who betrayed us.”

Citizens have to be informed and engaged, George said sternly. And even though I say that same thing often in print and on the air, it somehow seemed to carry more gravity when he said it.

As for the cover NY Governor Andrew Cuomo promised those politicians who helped him muscle this law through, George had this to say:

“Andrew Cuomo is a powerful politician, no doubt, he’s a tough guy. But we have to be just as tough…The great thing about standing up to a bully is that it always works.”

And the interesting thing about the bully pulpit of big media, is that it sometimes works against itself. Or in spite of itself. Like this New York Times article on a San Francisco study on gay marriage relationships. Prof. George gave the Times credit for reporting that.

Control the marriage message

The movement to promote same-sex marriage has been very active and very successful. The movement to promote and protect traditional marriage laws has been very active, and seemingly less successful. What’s the truth?

That’s the key question, actually, and fewer people asking means more power to influence public opinion.

Take this front page story in the New York Times just over 24 hours after same-sex marriage was legalized by the state legislature.

The story of how same-sex marriage became legal in New York is about shifting public sentiment and individual lawmakers moved by emotional appeals from gay couples who wish to be wed.

But, behind the scenes, it was really about a Republican Party reckoning with a profoundly changing power dynamic, where Wall Street donors and gay-rights advocates demonstrated more might and muscle than a Roman Catholic hierarchy and an ineffective opposition.

On the first part of that…”shifting public sentiment” wasn’t quite reported that way when the issue was abortion and the polls began to inch over the fifty percent mark. As far as the emotional appeals that struck lawmakers, the overlooked fact is that they’re selective. Lawmakers who voted that way ignored a great number of emotional appeals from all sorts of people who called for the defense of marriage as it has traditionally been known and upheld by the states in history.

As for the “profoundly changing power dynamic”, have gay rights advocates demonstrated more might and muscle than the Roman Catholic church? And has the opposition to gay marriage been ineffective? Just saying that on the front page of the Times doesn’t make it so (and it isn’t), but since perception becomes reality, let’s check the perception. Or spin.

The Catholic hierarchy has been very present and active in the marriage movement. Especially NY Archbishop Timothy Dolan. After the vote, the bishops released this statement on the USCCB website, written by Archbishop Salvatore Cordileone, one of the most involved bishops in the marriage debate:

“Marriage, the union of a man and a woman, forms the foundation of social well-being by promoting love and respect between the two most fundamental representatives of the human community,” he said. “The institution of marriage also affirms the vital and unique importance to children of receiving care from both their mother and father together.  Making marriage law indifferent to the absence of either sex creates an institutional and cultural crisis with generational ramifications yet to be seen. To eliminate marriage’s very essence – its essence as the union of husband and wife – from its legal definition is to ignore not only basic anthropology and biology but also the purpose of law generally. Law is meant to uphold the common good, not undermine it. Now, New York’s government will be forced to ignore that children have a basic right to be raised by their mother and father together. Also, as demonstrated in other states where marriage redefinition has occurred, officials there will be in a position to retaliate against those who continue to uphold these basic truths.  This is a mark of a profoundly unjust law.”

It was not inevitable, as big media have suggested or predicted for months now.

Yes, it is true that six states have imposed a new definition of marriage on their citizens. But let’s take a step back and look at the big picture.

In the 31 states where voters have been given the choice to redefine marriage — we have won every time. Next November, Minnesota voters have the opportunity to become the 32nd state and North Carolina may not be far behind.

And what about those six states already with same-sex marriage?

Voters in Iowa last year threw out three of their state Supreme Court judges that had decreed same-sex marriage. The Iowa State House has since strongly voted in support of a marriage amendment, and if Republicans can regain the State Senate, they likely will call for a vote in that chamber.

And in New Hampshire, politicians who supported so-called same-sex ‘marriage’ were booted out of office last November. As we write, significant efforts are already underway to oust the turncoat Republicans in New York that switched sides and voted for this new law.

This year too, voter pressure stopped efforts to re-define marriage in both Rhode Island and Maryland.

Friday’s vote in New York may in fact represent the high water mark in the effort to redefine marriage in the United States.

Really? That may be a tough sell. But Thomas Peters says essentially the same thing. Because in an odd sort of way, defeats like this galvanize the Catholic and Christian populace. If only people found such inspiration in time to have changed the outcome to this point…

I’m heartened by the outpouring of commentary in the wake of New York’s move to legalize gay “marriage.” Truly, I am. It means that Catholics care about marriage and are distressed when they see it under attack (as they should).

But the sudden uptick in volume of Catholic voices talking about the threat to marriage represented by its redefinition in New York confuses me, for this reason: we could have stopped it…

Catholic commentary follows mainstream media commentary. The number of headlines earned by a victory for gay marriage far outweighs (I would bet by a ratio of at least 10-to-1) the number of stories written about gay marriage defeats. So a part of this phenomenon is due to Catholics sensing a major shift has happened in the fight to protect marriage only when the media signals us a shift has happened — and the media is careful to only signal such shifts when they like where they think they see things headed…

And yet, instead of trumpeting the victories in these first two states when they happened, far more ink has been spilt by Catholic voices bemoaning the final result in New York.

There’s a reason for this: Catholic commentary follows mainstream media commentary. The number of headlines earned by a victory for gay marriage far outweighs (I would bet by a ratio of at least 10-to-1) the number of stories written about gay marriage defeats. So a part of this phenomenon is due to Catholics sensing a major shift has happened in the fight to protect marriage only when the media signals us a shift has happened — and the media is careful to only signal such shifts when they like where they think they see things headed.

Control the message.

But there are things to do immediately, as Peters points out in that post. One of them is to get familiar with the debate points, and be ready to engage them.

Two out of the final points he makes are key right now:

As you begin to think about the November 2012 elections, get into the habit now of evaluating candidates and issues in terms of how they impact marriage and the family.

Pray for those who fight to protect marriage and family and work to learn more about why marriage is only between one man and one woman for good reasons.

I talked with Thomas on radio Tuesday, and we agreed that this debate must be engaged on the basis of reason, by informed people, with respect for all viewpoints. Let’s debate these ideas and their merit and consequences, truthfully. And give voice to the people. Backroom deals by politicians demean the process.

Marriage changed “radically and forever”

Let’s look at the state of the union…

There are those who define and defend marriage as an institution, and a sacred one, between one man and one woman. Individual states have had a vested interest over the years in upholding  that definition. But those who have redefined marriage and mobilized a movement to change the nation’s laws governing it have won a big victory in New York.

Late Friday night, in an eleventh-hour vote on the issue, the Republican-led Senate voted to legalize same-sex marriage.

The Democratic-led state Assembly had already signed off on the bill, so after the Senate vote, the only remaining piece of business required to turn the bill into law was for Gov. Andrew Cuomo to sign it. He did so just before midnight, making the Empire State the sixth state to legalize same-sex marriage, joining Massachusetts, Iowa, Connecticut, Vermont and New Hampshire. (Same-sex marriage is also legal in Washington, D.C.)

WSJ has a bunch of links to other articles there, including the interesting snips from Reuters:

When New York became the sixth and by far the largest state to legalize same-sex marriage, following a grueling overtime session in the state Legislature on Friday, it immediately transformed the national debate over the issue, legal experts said.

With a population over 19 million — more than the combined population of the five states that currently allow gay marriage, plus the District of Columbia, where it is also legal — New York is poised to provide the most complete picture yet of the legal, social and economic consequences of gay marriage.

Which is to say this is a huge social experiment.

If a significant portion of those couples choose to marry, it could provide a wealth of new information about the practical economic effects of such legislation, from employment and retirement benefits to divorce rates and wedding and tourism industries, said New York Law School professor Arthur Leonard.

Added Leonard: “It becomes less of an experiment the more information we have.”

But how information is handled is another thing. Truths about marriage are relative for some, absolute for others, which is why these social battles have been so passionately engaged. The difference is very revealing in the different reactions.

 The Catholic Church:

Within minutes of the result…the following statement was released by the New York bishops, who provided the measure’s lead institutional opposition:

The passage by the Legislature of a bill to alter radically and forever humanity’s historic understanding of marriage leaves us deeply disappointed and troubled.

We strongly uphold the Catholic Church’s clear teaching that we always treat our homosexual brothers and sisters with respect, dignity and love. But we just as strongly affirm that marriage is the joining of one man and one woman in a lifelong, loving union that is open to children, ordered for the good of those children and the spouses themselves. This definition cannot change, though we realize that our beliefs about the nature of marriage will continue to be ridiculed, and that some will even now attempt to enact government sanctions against churches and religious organizations that preach these timeless truths.

We worry that both marriage and the family will be undermined by this tragic presumption of government in passing this legislation that attempts to redefine these cornerstones of civilization.

Our society must regain what it appears to have lost – a true understanding of the meaning and the place of marriage, as revealed by God, grounded in nature, and respected by America’s foundational principles.

Meanwhile, at the Gay Pride Parade

Two days after the State Senate voted to legalize same-sex marriage, participants in New York’s 42nd annual gay pride parade on Sunday came to shout, dance, cheer, strut, hug and shed tears of joy, knowing that on July 24, when the law takes effect, the season for tears will begin in earnest.

It was a noisy, and jubilant, day in the West Village.

Much of the cheering was aimed at Gov. Andrew M. Cuomo, a Democrat, who made legalization of same-sex marriage a part of his election campaign and then led the fight for its approval in the Republican-controlled Senate.

It’s a social moral issue, fundamentally human. But ultimately political. Every time this was put to a vote by the people, all 33 times, the people voted to uphold laws that define marriage as the union of one man and one woman. The politicians they elected decided otherwise.

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.

Gay marriage on hold…again…for now

After declaring a California voter initiative wrongly passed because he disagreed with the citizens’ conclusion, Judge Vaughn Walker took it upon himself to declare anyone who disagreed with him ineligible to appeal to a higher court. Case closed, he thought. He was wrong.

In yet another odd twist to this saga, it’s the notorious Ninth Circuit that has made wisdom prevail, for now anyway, as this process moves forward in the appeals phase. Couples

The 9th Circuit Court of Appeals put gay marriage on hold indefinitely, but agreed to expedite the case, scheduling arguments on Dec. 6…

California’s county clerks were preparing to issue same-sex marriage licenses beginning tomorrow. But they’ll now have to wait until at least the 9th Circuit’s ruling.

The case is expected to wind up before the U.S. Supreme Court eventually.

Media analysts are trying to figure out what might happen when the 9th hears the case in December and rules sometime after the first of the year….and what may come after that. One thing they’re pretty unanimous on is the certainty of an ongoing battle.

Some legal experts say if the appeals court eventually rules Proposition 8 backers cannot bring their petition for relief, the Supreme Court may not seek to intervene further, giving no clear guidance on the larger question of the constitutionality of same-sex marriage nationwide.

And some are certainly hoping that’s the case.

Persons and acts and marriage

At the absolute core of arguments over abortion and same-sex marriage, at the heart of the matter before other points of contention are made one way or the other… the presumption that we either have person/body dualism or we do not. Philosophers and scholars and other intellectuals have been debating that point for a very long time. But with laws changing the way they are, it’s time to move it front and center.

How else to answer pointed and increasingly challenging questions about why, say, two people of the same gender who truly love each other can’t enjoy the same recognition of their relationship as a man and a woman? Especially the trump card….that some heterosexual couples cannot conceive children, either?

News stories abounded on the recent ruling overturning the ban on gay marriage by San Francisco based U.S. District Court Judge Vaughn Walker, but they rehashed the basics. While dropping crumb trails of claims and ideas that provoked questions. At least for anyone seriously interested in engaging this debate fairly and justly.

Let’s take one. This one from Politico, for instance.

So, as we know…

a federal judge ruled [recently] that California’s voter-approved ban on same-sex marriage violates the U.S. Constitution.

The voters voted and they voted wrong, ruled this judge.

Walker’s ruling stems from a lawsuit filed by two gay couples who claimed the law violated their civil rights.

One of the organizers of that suit, Chad Griffin, held a press conference after the judge handed down this victory to his cause.

The ruling by Walker, he said, speaks to “fundamental American values of freedom and fairness. It affirms that under the Constitution, the government of the people, by the people and for the people can not discriminate against the people.”

But the government of the people, exercised by the people and for the people in the electoral process when they voted on this issue, has been overturned by this unelected judge. So that’s just rhetoric that makes it all sound good.

Back to what the judge said:

In his ruling, Walker repeatedly argued in his decision that banning same-sex marriage amounted to sex discrimination because some individuals are denied the right to marry others based solely on their gender.

That’s a stretch. But it got more unreasoned.

…excluding same-sex couples from marriage is simply not rationally related to a legitimate state interest,” Walker wrote in his 136-page decision.

Not true.

The most common state interest discussed in same-sex marriage case law relates to procreation, either the interest in encouraging procreation for the sake of ensuring the continuation of society or the interest in responsible procreation. In one of the earliest opinions, arising from a challenge to Washington’s marriage law, the court asserted, “The fact remains that marriage exists as a protected legal institution primarily because of societal values associated with the propagation of the human race.” The court also said that the state’s failure to redefine marriage to include same-sex couples “is based upon the state’s recognition that our society as a whole views marriage as the appropriate and desirable forum for procreation and the rearing of children.” The court rejected the contention that the fact that some married couples do not have children defeats this interest, noting that “[t]hese . . . are exceptional situations.”

This is only one of many available accounts of court cases citing state interest in marriage.

Similarly, the Ninth Circuit noted that “homosexual marriages never produce offspring.” In a dissent to the Supreme Court of Hawaii’s decision that marriage is a form of sex discrimination, Judge Heen stated his belief that the purpose of the marriage law is “to promote and protect propagation.” In the Vermont same-sex marriage case, the state argued that its marriage law protected the state’s interest in “furthering the link between procreation and child rearing.” By “promoting a permanent commitment between couples who have children to ensure that their offspring are considered legitimate and receive
ongoing parental support” and counteracting a message that fathers and mothers “are mere surplusage to the functions of procreation and child rearing,” the state can “send a public message that procreation and child rearing are intertwined.”  The court dismissed this interest by saying that some opposite-sex couples do not have children and some same-sex couples do, so there is “no logical connection” between the marriage law and “the stated governmental goal.” The court also asserted that the availability of assisted reproductive technology breaks the link between procreation and child rearing.

Now that’s going out on an activist limb.

Back to the body/person dualism at top. Here’s a snip to explain the existential question…

…dualism — the idea that a person is a mind or a consciousness that has a body, rather than being a bodily entity — is both widespread and mistaken.

…liberal positions on abortion, euthanasia, marriage, and sex, are often implicitly based on the false idea that human beings are essentially non-bodily persons who inhabit and use non-personal bodies. People who embrace this view typically regard the body as a mere extrinsic tool that we may legitimately use to obtain desirable effects on our consciousness. (The consciousness is regarded by people who accept dualism as the “true” person who inhabits, or is somehow “associated with” the body.)

As Prof. Robert George explains in his book The Clash of Orthodoxies, the belief in dualism necessary for advocacy of abortion and same-sex marriage “presupposes a dualism of ‘person’ (as conscious and desiring self), on the one hand, and ‘body’ )as instrument of the conscious and desiring self) on the other. People who believe in dualism, George explains, see the “sexual organs as ‘equipment.” Or ‘plumbing’, to put it even more bluntly.

This may be casting the hook far too deep, but there’s a reason the Apostles were fishermen. We are fully-integrated human persons, or should strive to be.

The Church rejects materialism and self-body dualism. The human being is neither a mere material reality nor a soul or consciousness possessing or inhabiting a body. As Aristotle recognized, and as many Christians and others have understood for centuries, the human being is a rational animal — an integrated unity of body and soul.

Pope John Paul II’s dissertation was a work called Person and Act, though wrongly translated in the West as The Acting Person. Explained here for anyone with time and interest…

In shorter, more concise form…the Manhattan Declaration.

We acknowledge that there are those who are disposed towards homosexual and polyamorous conduct and relationships… We have compassion for those so disposed; we respect them as human beings possessing profound, inherent, and equal dignity; and we pay tribute to the men and women who strive, often with little assistance, to resist the temptation to yield to desires that they, no less than we, regard as wayward. We stand with them, even when they falter. We, no less than they, are sinners who have fallen short of God’s intention for our lives. We, no less than they, are in constant need of God’s patience, love and forgiveness. We call on the entire Christian community to resist sexual immorality, and at the same time refrain from disdainful condemnation of those who yield to it. Our rejection of sin, though resolute, must never become the rejection of sinners. For every sinner, regardless of the sin, is loved by God, who seeks not our destruction but rather the conversion of our hearts. Jesus calls all who wander from the path of virtue to “a more excellent way.” As his disciples we will reach out in love to assist all who hear the call and wish to answer it.

These Christians propose ‘a more excellent way’ to a goal we have forgotten: a full human integration.

Because we honor justice and the common good, we will not comply with any edict that purports to compel our institutions to participate in abortions, embryo-destructive research, assisted suicide and euthanasia, or any other anti-life act; nor will we bend to any rule purporting to force us to bless immoral sexual partnerships, treat them as marriages or the equivalent, or refrain from proclaiming the truth, as we know it, about morality and immorality and marriage and the family. We will fully and ungrudgingly render to Caesar what is Caesar’s. But under no circumstances will we render to Caesar what is God’s.

We are in for a long and protracted battle.