Obergefell: Freedom’s End Foreshadowed

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My BreakPoint column posted today is about the undeniable differences between Obergefell v. Hodges and Brown v. Board of Education. For those who do not remember, these are the Supreme Court cases in which gay marriage was allowed and school racial segregation was disallowed. Several people have been saying Obergefell is the Brown of our generation, and I show in this column that the differences between the two are too great to permit seeing them that way. Gay rights have little in common with historic civil rights.

My argument there does not depend in any way on moral issues or on whether gay marriage is a good idea, so I believe it should be persuasive to persons on both sides of the current debate.

New Rights or a New Institution

It’s only half of what I originally wanted to say, however. I ran out of space. The rest of my discussion picks up here with what I wrote there about “glarriage” and marriage:

Imagine another world where instead of fighting for same-sex marriage, gays and lesbians had campaigned for, and won, the right to glarriage (from a mash-up of gay, lesbian, and marriage). Suppose the Supreme Court had decreed that partners in glarriage would have the same rights, privileges, and responsibilities under law that partners in marriage have.

In that world opposite-sex partners would never enter into glarriage, and same-sex partners would never enter into marriage. Marriage and glarriage would never be considered two instances of the same institution, but as two separate though legally related institutions.

It didn’t happen that way in this world; we didn’t end up with two separate institutions–or did we? Is there any empirical difference between the following?

  1. The Court created a separate institution to exist alongside marriage, but called it by the same name.
  2. The Court created for same-sex couples the right to enter into the existing institution of marriage.

Both versions have the same functional and practical characteristics. Obviously the gay-rights agenda has been to pursue 2, not 1. They’ve been campaigning for a new right to be granted them. It is not (as I argue in the linked column) an old right being extended to them, on the recent recognition that it should have been theirs all along. It is a new right.

Which leads to my thesis for this article: If it’s true that the Supreme Court created a new right when it decided for gay marriage (and I think it is), then everyone, gays included, has reason to be very worried about it. They may have lost more than than they won; their victory may be Pyrrhic in the long run.

This blog post is not about gay rights. The Obergefell decision was the occasion for my writing it, but I could have written it about any other rights-creating Supreme Court decision. Gay rights entered in to the beginning of this blog post, but only so that I could establish the fact that Court has taken on for itself the business of extending new rights to some groups.

In this article I push the envelope on my commitment not to write about politics. It is not about any campaign, however. It’s about how we can continue to live in a freedom-supporting country.

Government Within Limits

There’s plenty of controversy over whether America was founded as a Christian nation. I don’t actually care about the numbers and proportions of pastors and churchgoers in the founding bodies. Regardless of all that, it’s hard to miss the Christian sensibilities built into our Constitutional approach to government. The self-governance principles, the separation of powers, and the checks and balances in it reflect a biblical view of humans.

The Constitution recognizes that we are people of dignity and knowledge with a responsibility to rule our individual domains to the extent that we have authority: from house and yard to community to workplace to local, regional, state, and federal government. It recognizes at the same time that we are marred by fallenness, and each individual needs limits on his or her power; thus checks and balances, and thus also separation of powers.

Legislators Without Limits

Now, if the Supreme Court has indeed created a new right (as I have argued more thoroughly in the other article), then we have a breach in our Constitutional protections from overreaching power. The ability to create rights in that manner seems to have been arrogated to the Bench by the Bench. The Court created for itself the right to create rights. This appears to be a case of unrestricted power, for there is no Constitutional remedy if the Court uses that power to create rights contrary to the will of the other two branches and of the people.

A Court that can create rights can take those rights away, or it can interpret them out of practical existence. Witness the Court’s recent unwillingness to take up First Amendment religious freedom cases.

And the Court’s ability to create or remove rights is extremely powerful. The Court can invalidate legislation, and it can order legislatures to pass laws. There is little practical distinction between that and their functioning as legislators themselves, except that members of the Court are unelected and serve for life. Their only constraint is the Constitution; and a Court that can find a right to gay marriage in the Fourteenth Amendment while missing a right to religious freedom in the First is a Court for whom the Constitution provides very little restriction indeed.

Freedom’s End Foreshadowed

Same-sex couples have wanted to be free to marry. They gained that freedom through a Court action that undermines freedom. In it the Court established itself further as the kind of unlimited governing body that the Constitution was written to prevent. Gay-marriage supporters won a battle for a certain kind of freedom. Winning battles that way could spell the end of our freedom—and theirs—to fight the next one.

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70 Responses to “ Obergefell: Freedom’s End Foreshadowed ”

  1. It is simply amazing that the other branches of government seem to be simply rolling over and allowing the courts to dictate legislative requirements. The same thing is happening in Canada. Courts are striking laws down as unconstitutional and legislators are unwilling to invest the political capital to re-write legislation so that it can uphold the intended purpose. Instead they say “the courts have ruled, we must comply”.

  2. From the Breakpoint article: “Civil unions in our world had a form much like glarriage, but gay-rights advocates mounted only a tepid campaign for them.”

    The problem is that 3/4 of the state-level “Defense of Marriage” amendments outlawed civil unions, too. So the ‘tepid’ attempt for them is pretty understandable – if your opponents aren’t going to accept any kind of compromise, why bother searching for one?

  3. I opposed civil unions because I didn’t believe gay activists would settle for them. I was pretty sure (and I still am) that civil unions were intended as a plebiscite- or legislative-approved stepping-stone to gay marriage.

    As it was they proved to be an irrelevant strategy, as the will of the people and the state legislatures was not considered by the Court that made the decision. Had that not happened, civil unions would still have been a relevant topic for discussion, and I would have had the same mistrust in them that I have always had.

    Or in other words, I opposed civil unions because I saw them as a compromise my opponents would accept as a strategic stepping stone, but would not settle for. If (to paraphrase what you say) your opponents won’t settle for compromise…

  4. It’s not like power grabs have been exclusive to the courts. The executive branch under this President has been on a power grabbing tear ever since they got in office. In some ways I see the courts thinking “Hey, if all bets are off I’m going to get a piece of the action, too.”

    And, of course, this latest invention on non enumerated rights only follows what the Court did in Roe v. Wade. What does it matter that the Court redefines marriage when it has already redefined murder.

  5. Tom –

    The self-governance principles, the separation of powers, and the checks and balances in it reflect a biblical view of humans.

    Huh. While some of them might be reconcilable with “a Biblical view”, I don’t see how most of the essential ones are. Self-governance, for example, the notion that the power to govern resides with the governed and is granted by them to elected officials – that seems to run counter to Romans 13:1. Freedom of speech and assembly, too – I dunno where that could be found in the Bible. Checks and balances certainly help minimize temptations to abuse power, but that’s hardly dependent on “a Biblical view of humans”. Consistent with, perhaps, but there’s no unique relationship there.

    The Federalist Papers were essentially propaganda arguing for adoption of the Constitution. They didn’t cite anything at all from Scripture. If the case were so clear, why didn’t they avail themselves of such a persuasive tool?

    (That leaves aside other essential elements of our legal system, like presumption of innocence, trial by a jury of one’s peers, freedom from cruel or unusual punishment, freedom from involuntary self-incrimination, or the prohibition of the establishment of religion.)

  6. Tom –

    If (to paraphrase what you say) your opponents won’t settle for compromise…

    There’s a symmetry-breaking distinction, though. One side – the ‘defenders of marriage’ – preemptively ruled out all compromise.

  7. Ray,

    You can attempt to deny that our government and Constitution aren’t the refection of a Biblical view but democracy in general and ours in particular arose and only arose under a Christian dominated worldview. The beginnings of democracy during the Christendom the Middle Ages and, of course, ours in the heavily Christianized colonies. Could be just a coincidence but I think not.

  8. Tom how far can this train of thought be unwound, how many other historic advances in civil liberties were also stepping stones to gay marriage (the ultimate evil apparently) and thus you would have opposed?

  9. I’m wholly and unreservedly in favor of civil rights. Read the BreakPoint article. I make a clear and principled distinction there between that and gay rights.

    I would not suggest or support undoing any genuine civil liberties advances. None.

  10. …how many other historic advances in civil liberties were also stepping stones to gay marriage…

    Raz,

    This might be a valid train of thought if the Obergefell decision followed “other historic advances in civil liberties.” However, it’s more in line with the invention of non enumerated rights as the Court decided was appropriate in Roe v. Wade. Whether this is really an historic advance in civil liberties remains to be seen.

  11. I did read your article and I’m sorry that you can’t see the similarities between born black or born gay or why discriminating against one is any less vile or wrong than the other. I suppose people of colour should be thankful there’s no verse in the bible specifically forbidding the intermingling of the races or you’d presumably be writing so passionately against allowing inter-racial marriage.

  12. Who said I couldn’t see similarities? I’m sorry you can’t see the differences I laid out there. They’re plain as day.

    And what on earth makes you come up with that outlandish drivel about inter-racial marriage? The best I can make of it is that you didn’t read the article; or if you did, you read it to find what you were looking for, whether it was there or not. What I wrote was precisely in contradiction to that.

    You’re not basing your opinions on evidence. What else is left to explain them, then, but stereotypes? Do you believe in stereotyping? Wouldn’t you think it would be better to stop it, then?

  13. Hah not basing my opinions on evidence, that made me laugh! You state explicitly that there isn’t an equivalence between gay rights and other civil rights.

    “civil rights and gay rights cannot rationally be viewed as occupying the same level of moral import.”

    Rationally viewed by somebody predisposed to thinking homosexuality is immoral perhaps. Not rationally viewed by anybody looking at something from an unbiased view point I can assure you. We’re talking about whether or not it’s ok to treat a group of people differently due to traits they have no control over. The rational view is that if it’s not ok to discriminate against one kind, it shouldn’t be ok to discriminate against another.

    Perhaps if I’m still misinterpreting what you’re saying you need to work on making your message clearer.

  14. We’re talking about whether or not it’s ok to treat a group of people differently due to traits they have no control over. The rational view is that if it’s not ok to discriminate against one kind, it shouldn’t be ok to discriminate against another.

    Then explain why you, and the law, treat young humans differently than older humans when the only difference is various traits they have no control over? The “rational view” would require you to treat them the same. Oh, and the same argument applies to unborn children and abortion.

    Why the ongoing “irrational” discrimination, Raz?

    You just can’t make this stuff up folks.

  15. Raz, perhaps if you’re still misinterpreting you could read what I wrote instead of asking me to rewrite it. This time try to read the sentences before and after the ones you’re choosing to be bothered by.

    This was about a 1400 word article, all one extended argument, so you might even think of reading more than a few sentences.

    The rational way to assess an argument is by reading it.

    Don’t blame me if you don’t.

  16. And I really shouldn’t need to remind you again of how you yanked that interracial marriage thing out from among your stereotypes. I said the opposite of what you claimed. You did indeed draw evidence-free conclusions there.

  17. @SteveK, congrats on being that guy to pose a ridiculous example and declare victory. Actually yeah children are discriminated against and it can be extremely damaging.

    @Tom, I’ve now read your article twice, I feel like I deserve a badge or something. I still reach the same conclusion. You’re blinded by your assumption of the immorality of homosexuality so you can’t see that actually yes gay people have historically been treated as less than human and still are in large parts of the world. Imprisonment, execution, social exclusion and stigmatisation, rejection from families, forced conversion therapies to name but a few of the injustices gay people suffer to this day.

    I’d suggest if you want to write about the rights of a minority group from the lofty position of being a white, straight Christian man in a country that grants the most privileges (culturally and socially if not legally anymore) to white, straight, Christian men, you might want to try a little harder to understand the viewpoints of those ‘less fortunate’ by quirk of their birth and why any further steps towards normalising gay people in society is actually the rational, humanitarian and moral thing to do.

  18. Yeah, Tom. Not only did the article you wrote not say the things it said or explain the things it explained but you’re guilty of being a white, straight Christian man. Bad day all around for you.

  19. Raz,

    You didn’t read my article. I mean, you’re accusing me of being blinded, but I actually addressed this, and you didn’t see it!!!

    Let me compress it into just a very few words.

    1. The article is about marriage rights. It’s not about any other manner in which gays and lesbians have been oppressed.

    2. Gays and lesbians have been denied marriage to each other up until now.

    3. They have not been denied this on the basis of being regarded less than human.

    4. The evidence for this is that many, many, many other people who have been regarded as less than human have been allowed the right to marry. Therefore “you must be considered fully human” has never been considered a qualification for “you may marry each other.”

    5. Therefore there must be some other reason same-sex couples have never been allowed to marry.

    I explore along those lines and (without repeating all that here) I conclude that:

    6. The reason same-sex couples have not been allowed to marry has nothing to do with the way society has viewed gays and lesbians and everything to do with the way society has viewed marriage.

    7. In giving same-sex couples the right to marry, the Supreme Court created a new right that had never existed for anyone before.

    8. This new right was not based in a new recognition of gays’ and lesbians’ essential humanness (see #3 and #4: their humanness was never at issue in the marriage debate), but in an altered understanding of what marriage is.

    9. In contrast, when African Americans were granted legal rights through the civil rights movement, that was based in a new societal recognition of blacks’ humanness. They were granted no new rights, but rather, new legal access to long-existing human rights.

    10. Therefore the basis or reason for the new rights granted gays and lesbians is qualitatively different than it was for African Americans.

    11. Therefore Obergefell and Brown v. Board are qualitatively different in important ways.

    That’s what my article was about, Raz, and it didn’t overlook that which you said I was blind to.

    If my article had been about the way gays and lesbians have been treated around the world, I would most certainly have raised a serious cry of alarm for the way they have been unjustly oppressed. They have been discriminated against in ways that are unrelated to their sexuality, and they have been hurt deeply in ways that are entirely wrong. In my forthcoming book I say that several times and in several ways, making reference to the Bible’s prophetic call to cease oppression.

    To see that a person is hurting is no reason to oppress him. Even to see that a person is wrong (as I still say that practicing homosexuality is wrong) is no reason to oppress him.

    (There is a difference between just and unjust discrimination that I need to mention here in passing, without going into it, mostly to head off possible misunderstandings from the other side, that I have conceded everything to the gay rights crowd.)

    In my book I had room to write about several things. My BreakPoint article was about one thing: an extended argument leading to one conclusion (11, here). So I didn’t say everything. But I did address that which you said I was blind to, and the terrible irony is that after reading it twice, you still didn’t see it.

    Please be cautious of your confirmation bias and stereotypes, Raz.

  20. Tom,

    It isn’t that Raz didn’t read your article it’s that he hates your article. He hates anything that uses reason and logic and thoughtfully explains a viewpoint he doesn’t agree with. How do I know this? Because Raz is also the person who told you that you and your opinions weren’t worthy of consideration because of your race, sexual orientation and religious beliefs. And what are people who tell that you and your opinions aren’t worthy of consideration because of your race, sexual orientation and religious beliefs. They’re racist, sexist, religious bigots. Quite a trifecta.

  21. So, in a nutshell Raz is not saying Tom is wrong about gay rights not being a logical extension of civil rights because Tom made a faulty argument but instead because of who Tom is (white, Christian, male).

    This strikes me as a repudiation of civil rights. If I understand this correctly Tom is not be judged by the content of his character so to speak (or in this case…his ability to reason and make a coherent case for his position) but instead should be judged based on who he is, and who he is apparently comes up short.

  22. …you might want to try a little harder to understand the viewpoints of those ‘less fortunate’ by quirk of their birth and why any further steps towards normalising gay people in society is actually the rational, humanitarian and moral thing to do.

    Understanding the viewpoint that gay people have has nothing to do with *why* they are/were treated a particular way. To answer that question you have to understand the *reasons* that drive the behavior of those on the other side.

  23. The legal victories won by black Americans were (as the name implies) civil rights victories, not African-American rights victories. The moral force behind their movement was the living, powerful reality that black Americans, being fully human, are fully entitled to the whole panoply of rights endowed unto us by our Creator.

    Not so with gay rights.

    Say’s who? Google?

    When African-Americans were regarded as less than fully human they could marry. When the so-called “feeble-minded” were regarded as less than human they could marry. Disabled persons have been allowed to marry. Convicted prisoners are generally allowed to marry. Drug addicts have always been allowed to marry. Persons caught having premarital sex, back in the day when that was still considered scandalously immoral, were sometimes forced to marry; hence the term “shotgun wedding.”

    So obviously when same-sex couples were not permitted to marry, it wasn’t because of any disregard for their humanity or moral worth. Rather (and quite simply) it was because there was no such thing as same-sex marriage.

    Or, another takeaway from this fact might be that gay people have traditionally not only been considered less than human like all of the above, but lesser than all of the above. Perhaps even demonic (plenty of posters have literally said that on your blog Tom.

  24. Of course, the most fatal blow to Tom’s article… is that THERE IS GAY MARRIAGE – whether the courts/laws recognize it or not.

    THERE IS GAY MARRIAGE whether you stubbornly refuse to to call it a gay-marriage or not.

    IT EXISTS. It is

    People of past times somehow were oblivious to the fact that black people are human beings… You, Tom et al, are oblivious to the fact that gay people are not only humans, but also married and have been getting married since… well… we’ve had history.

  25. d-

    You raise a question that Tom has asked before, what is true about marriage that makes these “gay marriages” you speak of instances of (real) marriage?

    You act as if this is completely obvious, so the question should be a breeze for you to answer.

  26. d @27,

    You ask “Says who? Google?” No, actually, says me. I’ve been watching the debate unfold for many decades now. If you want to rebut me, try something other than “Says who?”, okay? But you won’t succeed, because there is no other explanation for why blacks deserve and have been granted legal rights. If you want to try one other than the one I gave–society’s recognition of their common humanness with all citizens and residents here–I think you’re going to have significant trouble. There is no other reason or explanation for it. This one is good, and it’s enough.

    You also say,

    Or, another takeaway from this fact might be that gay people have traditionally not only been considered less than human like all of the above, but lesser than all of the above. Perhaps even demonic (plenty of posters have literally said that on your blog Tom.

    I did an admin search of comments posted here in the seven years I’ve been blogging on WordPress. I found comments mentioning demonic activity as follows:

    12 have to do with some variant of Descartes’ evil genius theory (something like the Matrix idea).

    3 have to do with Maxwell’s demon

    31 have to do with possibility/reality of demonic activity in the Bible or today, with no connection to homosexuality in the context.

    2 are purely metaphorical or allegorical

    3 are in URLs

    There are more than 100 uses of “demonize” on this blog, but in every instance it’s about one person “demonizing” another. For example:

    “So it seems more important than ever to try and keep lines of communications open, to share views and hopefully prevent some of the demonizing that takes place on both sides.”

    There are absolutely no instances of anyone here suggesting that homosexuality is demonic. I don’t know where you concocted that idea from, but it shows a distorted view of this blog.

    Perhaps you meant to say instead that plenty of people have said that gays are less than less than human. Holopupenko is the only one I can think of who might have said anything remotely like that. He has spoken atheists’ “disordered intellect,” a technical term that does not mean “less than human,” but which could be misinterpreted that way. I don’t have an easy way to search and find out if he has said that specifically about gays or lesbians, but he certainly hasn’t done it recently. He has commented on this blog exactly one time this year.

    And you are really reaching when you say gays and lesbians have been considered even less human than (for example) heroin addicts on the city streets in America. It’s just a whole lot more likely (and in fact it’s true) that the reason same-sex couples have not heretofore been allowed to marry is not because of the way those couples have been viewed, but because of the way marriage has been viewed.

    Your anger is showing, and I’m sorry this is kicking that up in you. I’m also sorry to see it being expressed in such distorted views of this blog and of reality overall. You would do yourself a favor if you would calm down and reconnect with reality. I say that in all soberness.

  27. “THERE IS GAY MARRIAGE whether you stubbornly refuse to to call it a gay-marriage or not.”

    And with this, d demonstrates that equivocal language can make every statement a true statement.

  28. Regarding the definition of marriage, perhaps we can all agree on this much:

    Under the law (in Canada and the United States), same-sex couples now have equal access to all the rights available to opposite-sex couples with regard to civil marriage.

    Anyone has the right to call these same-sex unions marriages (or to refuse to call them marriages).

    In common parlance, they are called marriages.

    (None of which I find in the least troubling, though I understand that some people do wish it were otherwise, especially in the conservative Christian community.)

  29. Thanks, Tom. We might also agree that:

    According to some sectarian doctrines, and according to at least some or perhaps most interpretations of the Thomistic (or Aristotelian, if you prefer) philosophy of essences, these unions do not belong in the category of “marriage.”

    The consequence for me — and this is the part you may not like — is that, since I don’t belong to any such sect, and since I don’t espouse a theory of essences, I can freely and rationally refer to such legal unions as marriages.

  30. You would be legally correct to do so. You have the freedom to be ontologically wrong, based on your rejection of true ways of viewing reality. So in that sense, yes, we agree on this as well.

  31. Again, thanks. (And in a spirit of reciprocity, I grant you the freedom to be ontologically mistaken as well.)

  32. I have (obviously!) exercised it many times, speaking for myself.

    I could be wrong this time, too. I have enough conviction, though that I’ll add that I really doubt I’m wrong this time.

  33. I could be wrong this time, too. I have enough conviction, though that I’ll add that I really doubt I’m wrong this time.

    Took the words right out of my mouth.

  34. ““THERE IS GAY MARRIAGE whether you stubbornly refuse to to call it a gay-marriage or not.”

    And with this, d demonstrates that equivocal language can make every statement a true statement.” (SteveK)

    d’s comments remind me of a recent commenter who said that “internal logic does not matter” too.

    I also wonder if the pro-ss”m” side must view ss”m” to be essentially a form of reparations for past mistreatment of people that engaged in homosexual conduct. This point seems to often be brought up as one of the major objections to the view that marriage is a union of a man and woman after all. Gay people have been treated badly in the past, they now really really want their relationships to be considered marriages and not just a new form of marriage but the same kind of marriage that has existed for millenia, and we should give them what they want because they have been treated badly in the past. Never mind any questions about the nature of marriage and if it is even possible to accurately say a same sex relationship fits in the institution that has existed for millenia.

    As an aside, I am using the word millenia because it has been popularized by none other than Justice Kennedy. Despite his conclusions in the Obergefell opinion, from what I can tell he did us a big favor by describing marriage and what it means in a way that makes far better sense in our view than in the ss”m” view. Along with the fact that his opinion has been largely found by people on all sounds to be incoherent.

    This also strikes me as overall good news:

    http://thehill.com/blogs/blog-briefing-room/news/248421-poll-voters-split-on-gay-marriage

    http://www.huffingtonpost.com/entry/gay-marriage-public-opinion_55aa6a86e4b0d2ded39f2d12

  35. @DR84

    I also wonder if the pro-ss”m” side must view ss”m” to be essentially a form of reparations for past mistreatment of people that engaged in homosexual conduct. This point seems to often be brought up as one of the major objections to the view that marriage is a union of a man and woman after all. Gay people have been treated badly in the past, they now really really want their relationships to be considered marriages and not just a new form of marriage but the same kind of marriage that has existed for millenia, and we should give them what they want because they have been treated badly in the past. Never mind any questions about the nature of marriage and if it is even possible to accurately say a same sex relationship fits in the institution that has existed for millenia.

    Most anti-ssm arguments are not based on the premise that “marriage is a union of a man and woman…” as you say. Not. One. Bit. They are based on the premise “marriage is a union with *actualizable* procreative potential” – i.e. a union that *can* *actually* produce other human beings. Without such actualizable potential, we – much less the state – have no reason to regard those relationships as something special or worthy of the honorific term “marriage”.

    Of course, whether ones sex organs function or not is purely accidental. When the sex organ’s don’t function, and *actually* don’t possess that kind of *potency*, as is the case in many opposite gender marriages, SSM opponents are hesitant fully commit to the premises they pay lip service too here.

    We hear all sorts of things, like, well… even when that *potential* can’t actually be *actual*, x or y relationship is the same “type” as the procreative kind, so it still counts (that is – if things were different, it *could* be procreative). Potentially, potentially procreative…. Or that their acts of marital love pay homage to and honor the procreative relationship, etc. All ad hoc, all excuses to work around fatal counter-examples to their core premises.

    On the other hand, of course, such justifications equally support same-sex marriage relationships.. so its a double edged sword, for the SSM antogonist.. darned if you do… darned if you dont… So the only recourse is to fall back to the idea that gay-same-sex couplings are nothing more than vice and lust run amuck, rather than the same type of love/commitment/struggle/promise that *real* marriages are. Use words like “sodomites” generously for extra shame.

    And if any of you “broke bread” on a regular basis with such gay couples, that sort of delusion could not take hold, no matter how many articles you read from national review or First Things about how awful or hateful gay people are.

  36. @d:

    Most anti-ssm arguments are not based on the premise that “marriage is a union of a man and woman…” as you say. Not. One. Bit. They are based on the premise “marriage is a union with *actualizable* procreative potential” – i.e. a union that *can* *actually* produce other human beings. Without such actualizable potential, we – much less the state – have no reason to regard those relationships as something special or worthy of the honorific term “marriage”.

    This is false.

    You are using Aristotelian jargon to frame the issue and cannot even get it right: “*actualizable* procreative potential” is *not* “*can* *actually* produce”; this is *precisely* the base distinction that Aristotle introduced, the distinction between potential and actual.

    But even if you had the technical distinctions pegged right, your claim would still be false. The defense you quote is specific to traditional Natural law theorists; but new Natural law theorists like Finnis and Grisez explicitly eschew the Aristotelean metaphysical baggage and base their defense of traditional marriage on an analysis of the comprehensive goods tied to man-woman unions.

    The only question left to answer — and it is you who has to answer — is if the ignorance is, besides genuine, intellectually honest, or if this is a case of Frankfurtian bull****, meaning, like the Sophists Socrates combated, you do not even care about the Truth, but only about power. Propaganda and sloganeering just being the most convenient way to grab it.

  37. So the only recourse is to fall back to the idea that gay-same-sex couplings are nothing more than vice and lust run amuck, rather than the same type of love/commitment/struggle/promise that *real* marriages are. Use words like “sodomites” generously for extra shame.

    And if any of you “broke bread” on a regular basis with such gay couples, that sort of delusion could not take hold, no matter how many articles you read from national review or First Things about how awful or hateful gay people are.

    And heaven forbid we get a post from d where he doesn’t expose his religious bigotry. Sure, us religious types call gays sodomites and any other derogatory term we can think of as a matter of course. And we certainty have never “broke bread” with a gay person either (for fear of catching homosexuality) even those of us who live somewhere like say NYC. But when you don’t have anything of value to say there is nothing like smearing your opponents and insulting their character and integrity. The tactics of the bigot never change.

  38. d-

    I hope you dont mind if I ask a few questions to better understand your overall position. I believe they are all pretty simple and straightforward yes/no questions and should cause you no problems to answer.

    If we really cannot make a principled distinction between opposite sex and same sex couples does this mean it is possible for an opposite sex couple to have a homosexual relationship (or be “gay married” in other words…)?

    Also are you suggesting that it is only by sheer accident that 100% of all same sex relationships cannot produce children as opposed to by nature or design?

    Lastly, is it your position that it is and has it always been possible for two (straight) men to marry each other? A “marriage” that that involves no sexual activity. In addition, can two men (straight or otherwise) marry if they are brothers?

  39. All ad hoc, all excuses to work around fatal counter-examples to their core premises.

    There’s an old saying that’s applicable here….Better to remain silent and be thought a fool than to speak out and remove all doubt.

    There can be no doubt that d doesn’t understand the totality of the argument – yet by some epistemological miracle he knows it’s wrong. Foolish.

  40. d @#42

    Here are your assertions:

    1.

    Most anti-ssm arguments are not based on the premise that “marriage is a union of a man and woman…” as you say. Not. One. Bit.

    The argument upon which you base that conclusion is your second assertion:

    2.

    They are based on the premise “marriage is a union with *actualizable* procreative potential” – i.e. a union that *can* *actually* produce other human beings. Without such actualizable potential, we – much less the state – have no reason to regard those relationships as something special or worthy of the honorific term “marriage”.

    The evidence upon which you base that conclusion is nowhere to be found.

    The inference you proceed toward with that is your third assertion:

    3.

    Of course, whether ones sex organs function or not is purely accidental. When the sex organ’s don’t function, and *actually* don’t possess that kind of *potency*, as is the case in many opposite gender marriages, SSM opponents are hesitant fully commit to the premises they pay lip service too here.

    The evidence for that supposed hesitancy “to fully commit” is nowhere to be seen, unless it’s your fourth assertion:

    4.

    We hear all sorts of things, like, well… even when that *potential* can’t actually be *actual*, x or y relationship is the same “type” as the procreative kind, so it still counts (that is – if things were different, it *could* be procreative). Potentially, potentially procreative…. Or that their acts of marital love pay homage to and honor the procreative relationship, etc.

    Which you assess in your 5th assertion:

    5.

    All ad hoc, all excuses to work around fatal counter-examples to their core premises.

    The problem with this is that you write it off without the slightest sign of any attempt actually to understand why anyone would come to conclusions or use arguments approximately like those in 4. I say “approximately” because you were not terribly careful to state them in their clearest form.

    This is the closest you come to an argument in this comment. You identify something we have said and you tell us we got it wrong. Now, when I say that’s the closest you come to an argument, let me add the obvious, which is that “You’re wrong” is not very close at all.

    You go on to a sixth assertion:

    6.

    On the other hand, of course, such justifications equally support same-sex marriage relationships.. so its a double edged sword, for the SSM antogonist.. darned if you do… darned if you dont…

    This is not just an assertion lacking support. It’s a wildly improbable assertion lacking support. Let’s go on to the seventh:

    7.

    o the only recourse is to fall back to the idea that gay-same-sex couplings are nothing more than vice and lust run amuck, rather than the same type of love/commitment/struggle/promise that *real* marriages are. Use words like “sodomites” generously for extra shame.

    Here you psychologize our motivations, not recognizing the possibility that, for example, we have other reasons for assessing homosexual sex as an immoral act. You falsely assume what you say in your eight assertion.

    8.

    And if any of you “broke bread” on a regular basis with such gay couples, that sort of delusion could not take hold, no matter how many articles you read from national review or First Things about how awful or hateful gay people are.

    I have broken bread frequently with gay couples.

    If you broke bread with me on a regular basis, your hateful and delusional description of me could not take hold, no matter what you watch on TV or read on your pro-SSM websites.


    In summary, as I have demonstrated here, nothing you said in #42 had any substance. Nothing you said there contained any of the usual and necessary ingredients of a credible statement.

    You did succeed in producing an argument of the “Because I said so” variety. You succeeded in getting my relational history with gay men wrong. You succeeded in expressing hate to me. You succeeded in expressing what amounts to a delusional belief.

    And you probably don’t even realize that you got it from sources whose bias is just as real as First Things.

  41. Tom –

    I opposed civil unions because I didn’t believe gay activists would settle for them. I was pretty sure (and I still am) that civil unions were intended as a plebiscite- or legislative-approved stepping-stone to gay marriage.

    Hmmm. Let’s turn it around.

    There’s a fair amount of effort in several states in the last few years to restrict abortion after 20 weeks, the ‘fetal pain laws’. The idea being that the fetal brain, by around 20 weeks, is finally interconnected enough to feel something as basic as pain.

    Me, I think this is pretty sensible, so long as there are provisions for medical threats to the mother. (I think it’s very admirable for a woman to risk her life to carry a baby, and I’m really glad my mother-in-law did it in the case of my wife, but I don’t think it should be a legal duty.) Hardly anyone is unaware they are pregnant by 20 weeks, and a time limit to make the decision isn’t a hardship.

    Of course, in practice only a tiny fraction of all abortions actually take place after 20 weeks, and most of those are in fact for medical reasons, so as a practical matter these laws wouldn’t change actual outcomes much.

    But ‘abortion rights supporters’ believe such laws are intended as a plebiscite- or legislative-approved stepping-stone to banning abortion entirely, and therefore have opposed them.

    Do you believe, at least by their own lights, they are wise or justified in doing so? That, regardless of what you think of their goals, they are engaging in good strategy?

  42. BillT –

    You can attempt to deny that our government and Constitution aren’t the refection of a Biblical view but democracy in general and ours in particular arose and only arose under a Christian dominated worldview.

    Correlation doesn’t equal causation. Even if that were accurate, you should recall my points about astronomy and chemistry developing from astrology and alchemy. Nor were the concepts unprecedented – the Tang dynasty in China and the Sasanian empire in Iran both had the concept of the conflict of interest and provisions for mitigating it.

  43. Even if that were accurate, you should recall my points about astronomy and chemistry developing from astrology and alchemy.

    Yes, but only in Christian Europe.

    … the Tang dynasty in China and the Sasanian empire in Iran both had the concept of the conflict of interest and provisions for mitigating it.

    But it was only all put together under a Christian worldview.

    Correlation doesn’t (necessarily) equal causation.

    Unless it does.

  44. BillT –

    But it was only all put together under a Christian worldview.

    Actually, my point was that it wasn’t “all put together under a Christian worldview”. Check my list in #6. What has a Christian history is not unique, and what’s unique doesn’t have a Christian history.

  45. I for one did not argue that the Constitution could only have arisen in Christian Europe or its intellectual descendants. I did say it reflects a biblical worldview in certain senses, and there is simply no denying that it does reflect a biblical worldview in those senses. If other people came to those same views by other means, that’s no problem in my mind.

    @48: By their own (misguided) lights, their position is (misguidedly) sensible.

  46. Ray your “list” in #6 talks about about what specifics were or weren’t found in the Bible. Whatever was or wasn’t found in the bible specifically wasn’t my point. My point was that “democracy in general and ours in particular arose and only arose under a Christian dominated worldview.” And, in fact, it did no matter what specifics were found or not found in the Bible.

  47. Tom,

    The SC opinion on Obergefell specifically argues why the majority feels they are not creating a new right and I don’t see that you’ve addressed that argument specifically in your article. Responding to the points they make I think would offer a better chance of “finding common ground on both sides of the debate”.

    [Respondents] assert the petitioners do not seek to exercise the right to marry but rather a new and nonexistent “right to same-sex marriage.” … Yet … it is inconsistent with the approach this Court has used in discussing other fundamental rights, including marriage and intimacy. Loving did not ask about a “right to interracial marriage”; Turner did not ask about a “right of inmates to marry”; and Zablocki did not ask about a “right of fathers with unpaid child support duties to marry.” Rather, each case inquired about the right to marry in its comprehensive sense, asking if there was a sufficient justification for excluding the relevant class from the right. …

    That principle applies here. If rights were defined by who exercised them in the past, then received practices could serve as their own continued justification and new groups could not invoke rights once denied. This Court has rejected that approach, both with respect to the right to marry and the rights of gays and lesbians. See Loving 388 U. S., at 12; Lawrence, 539 U. S., at 566–567.

    The right to marry is fundamental as a matter of history and tradition, but rights come not from ancient sources alone. They rise, too, from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era.

    From opinion page 18-19.

  48. The SC opinion on Obergefell specifically argues why the majority feels they are not creating a new right

    The right to marry is fundamental as a matter of history and tradition, but rights come not from ancient sources alone. They rise, too, from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era.

    DougJC

    If you look at these two statements, it’s hard for me to understand how they could both be true. Perhaps if you were to read some of the dissenting opinions you might get a better sense where the majority overstepped.

  49. BillT – Actually, “democracy in general” arose and only arose in ancient, pagan Greece. Ours certainly developed for a long time “under a Christian dominated worldview”, but if it hadn’t, it wouldn’t be ours. And most of the refinements in the last couple centuries owe rather a great deal to the Enlightenment.

  50. Ray, the “democracy” of ancient Greece has little to do with what is practiced today. That has it’s origins in Middle Ages Christendom and has continued to develop steadily from then to what we see now. It’s also important to note that pretty much all the democracies we see today are all part of that progression and exist only in countries that were part of or came under the control of countries from those origins.

  51. Democracy in ancient Greece didn’t demonstrate separation of powers.

    The Enlightenment owes a great deal to Greece, Rome, and the entire Christian history of Europe preceding it. Somehow that third part seems often to be overlooked.

  52. Tom (and BillT, too since I think his point is similar),

    Re-read that last paragraph and the OP, and see what you can learn from them in juxtaposition. Then let’s talk.

    Last paragraph:

    The right to marry is fundamental as a matter of history and tradition, but rights come not from ancient sources alone. They rise, too, from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era.

    According to the SC majority, rights rising from better informed understanding of constitutional imperatives are not new rights, they are preexisting rights better understood. The example the SC opinion gives is Loving: a new right to interracial marriage was not created, rather a better informed understanding of constitutional imperatives extended a preexisting right; Turner: a new right of inmates to marry was not created, rather a better informed understanding of constitutional imperatives extended a preexisting right; Zablocki: a new right of fathers with unpaid child support duties to marry was not created, rather a better informed understanding of constitutional imperatives extended a preexisting right.

    To my knowledge Brown v. Board does not appear in the opinion.

  53. According to the SC majority, rights rising from better informed understanding of constitutional imperatives are not new rights, they are preexisting rights better understood.

    DougJC

    If you buy that then who am I to object.

  54. Patrick has a point, I wonder if a redefinition of marriage that benefitted the Christian worldview would generate so much consternation from Tom and his friends. Imagine a world in which marriage had never legally been a one man, one woman only institution and instead the supreme court was ruling to make it so, I wonder if he would be decrying the impending end of freedom in that case?

  55. BillT –

    Ray, the “democracy” of ancient Greece has little to do with what is practiced today.

    Well, sure. It applied only to military-trained males, for example. The circle of ‘voting citizens’ has expanded a bit since. The notion of ‘separation of powers’ has developed a bit since the days of kings, too, hasn’t it?

    pretty much all the democracies we see today are all part of that progression

    Sure, as travel spread ideas (and populations) more and more, the chances of an independent development dropped. The ‘evolutionary niche’ was already filled.

    Tom –

    Democracy in ancient Greece didn’t demonstrate separation of powers.

    Can you point out where I said it did? I’ve been pointing out that a whole range of separate ideas went into our government, only some of which have any Biblical history.

    The Enlightenment owes a great deal to Greece, Rome, and the entire Christian history of Europe preceding it.

    Well, sure. Only one of those threads could be termed ‘Biblical’, though, and there were new ideas, too.

  56.