I've been busy, hence the lack of posting, but I have noticed something in the recent hijinks to redefine marriage.
Very quickly:
1. If homosexuals have a right to be married, where does this alleged right come from?
2. If the right comes from some sort of natural law argument, let's hear it.
3. If the right comes from the positive law, then it doesn't exist, since the positive law doesn't recognize it.
4. If the positive law SHOULD recognize it, then the argument seems to shift back to #2.
5. The entire effort to justify the re-definition of marriage based on #2 seems to be limited thus far to "The traditional definition of marriage is mean and bigoted."
6. To this point, the folks I know who favor the redefining of marriage are vehement in insisting that churches will not be pressured, coerced, etc. into "marrying" homosexuals. I consider this effort to be inevitable. Will those currently in denial recant and defend the Church? Or will societal views by that time be such that they won't care?
This last bit could play out in a number of ways, but I think going after tax exemptions might be the most efficient route.
I think there could be a social contract argument that would run something like this:
ReplyDelete1. The people delegate to the government only those powers necessary to protect individual rights and collective well-being.
2. Allowing people of the same sex to marry doesn't jeopardize individual rights or collective well-being, as long as heterosexual couples are still allowed to marry with the same rights that they have always enjoyed.
3. Therefore, the state has no delegated power or rational basis to stop people of the same sex from getting married; and therefore, people of the same sex have the right to get married.
I'm not sure why you think churches will be pressured to marry same sex couples. Wouldn't people prefer to be married by authorities who respect them and their marriages?
This appears as though it could be a possible catalyst for the type of fragmentation of the Catholic Church in America present in Walker Percy's Love in the Ruins.
ReplyDelete1. Is collective well being the same as common good? These are malleable terms, regardless.
ReplyDelete2. This presupposes a certain definition of the terms introduced in #1. Moreover, does this include the right of children to a mother and a father?
3. Depends on the answers to the questions in #1 and #2.
Of course, a lot of this also rides on whether you buy into the whole social contract analysis at all. There's also perhaps some question begging in that the whole argument seems to assume that marriage is a concept that is already subject to redefinition.
On your last question, there are many people who would much rather see those who don't respect their beliefs be forced to do so. The Church is then "put in its place" and the secular world can rejoice that the great oppressor of Christianity has finally been brought into line.
We've already seen cases where priests are being set up for public pillory. Recall the case of the lesbian Buddhist who was denied communion by a priest. The priest was thrown under the bus in what was, by all appearances, an activist looking to advance an agenda.
http://www.huffingtonpost.com/2012/03/15/marcel-guarnizo-lesbian-communion-barbara-johnson_n_1349388.html
Collective well-being, common good, individual rights...the state has to have some rational basis, as the lawyers say, to intervene in peoples' personal lives (for example, by telling them who they can or cannot marry). So, what is the rational basis? It can't be "the right of children to a mother and a father," because stopping people from getting married doesn't stop them from having children, and because the state doesn't enforce this "right" in other cases.
ReplyDeleteIf you think the common good is harmed by same-sex marriage, how is it harmed? Marriage equality doesn't prevent heterosexual couples from marrying and raising their children according to their own values; it doesn't make people LGBT if they wouldn't have been anyway; it doesn't stop people from holding their own beliefs about how marriage should be defined.
The U.S. isn't a theocracy, and settling hotly disputed moral and religious questions isn't the role of our federal, state or city governments, as long as people of different beliefs can peacefully coexist without violating each others' rights.
Nor does the state enforce the "right" of homosexuals to be married, yet people are advocating that it should do so. Perhaps the rights of children are being ignored here.
ReplyDeleteOf course, stopping people from being married doesn't keep them from having children. I'm unaware of any governmental prohibition that has a 100% success rate. The issue is whether a mechanism should be created to facilitate the deprivation of the rights of the child. Which is what redefining marriage would accomplish. In essence, it makes a policy statement that one or the other parent is expendable.
On your last point, who is advocating a theocracy? Is a nation a theocracy because it models rules based on a natural rights or natural law theory? Since the Founders proposed inalienable rights from the Creator, does that mean they envisioned a theocracy?
Your last phrase only makes sense if we know and understand what a right is. I suggest that the majority of those wanting to redefine marriage have contradictory ideas about what a right is in the first place.
"Since the Founders proposed inalienable rights from the Creator, does that mean they envisioned a theocracy?"
ReplyDeleteSince one of those inalienable rights is liberty, I would have to say no, it's not theocratic. No matter to what or Whom it's attributed, inalienable liberty implies that people should be free to make up their own minds about religious and moral questions, as long as they don't impinge on other peoples' rights. So liberty is generally incompatible with theocracy.
Individuals and groups are free to argue about how marriage should be defined, but it's not the job of government in our society to take sides in hose arguments when there's not evidence that anyone is being harmed.
What's the natural law argument that children necessarily have to be raised by two parents of different genders? Since Plutarch (and presumably before him) people have seen that, while single parenting is difficult, a loving single parent can do a better job than an indifferent couple. Why should we believe that "natural law" says that a single-sex couple can't do the job? For that matter, why shouldn't we encourage same-sex parents to raise their children in stable relationships, and if they're going to do the hard and honorable work of raising children, why shouldn't we dignify their relationships by calling them marriages?
1. The right is not a right to marry; it's a right to avoid unequal treatment by the government. That right comes from positive law — the 14th Amendment — not as a positive right for individuals to have the government recognize their marriage.
ReplyDelete2. The First Amendment similarly prevents government from forcing any churches to perform same-sex marriages, and it likewise prevents the government from banning the performance of ceremony marrying two people of the same sex in the eyes of that church.
Brian:
ReplyDeleteA lot of this would depend on how we define liberty. Would the Founders have regarded "inalienable liberty" the same as you? Or me?
To clarify here, I was using the Founders as an example of guys who clearly believed in an objective order would not have favored a theocracy. I'm not saying that theirs would be the only way either, just that beliefs in objectivity doesn't equate to the Pope as emperor.
"...it's not the job of government in our society to take sides in hose arguments when there's not evidence that anyone is being harmed."
Where does this rule come from? Is redefining a concept to fit modern sensibilities perhaps harmful in that in makes us believe that certain things are different from what they actually are? This last question requires one to buy into the idea that things have a certain "essence" to them and are more than their label. You might disagree with that, though, but I wasn't sure and didn't want to make an assumption.
On your point about kids and parents, the natural law argument would start with the fact that two parents of opposite sexes are necessary to make the child in the first place.
As far as single parenthood goes, things happen. Some kids are orphans with no parents. No governmental action or natural law equation is 100% effective since we live in a fallen world. That doesn't mean capitulating to the zeitgeist when it commands us to facilitate what is acknowledged as destructive. I grew up with lots of kids that had no fathers. There are studies every day about how the lack of fathers is a huge societal problem. Yet we want to institutionalize such a lack now. I don't get it.
Ken:
1. It's not so easy go gauge though, is it? Which is right: Bowers v. Hardwick or Lawrence v. Texas? There was the law, and then there was the law. The 14th Amendment didn't change.
2. If some sect wants to conduct faux marriages, I agree they can do so. To have the state offer legal enforcement isn't required or desirable in my opinion.
On your broader point, the First Amendment says what the SCOTUS says it says. According to standing jurisprudence, you can put American citizens into internment camps if you have good enough reason (Korematsu). You can pass laws to compel the sterilization of the handicapped (Buck).
Even now the Obama administration couches the freedom of religion as "freedom of worship." It won't take much to write a Per Curiam opinion that takes this view on and then uses it as the fulcrum for just such a ruling.
It will be tried. Will it work the first time? Maybe not. I hope not. Will it eventually work? Probably.
By the way, thank you both for swinging by and participating.
"There are studies every day about how the lack of fathers is a huge societal problem. Yet we want to institutionalize such a lack now. I don't get it."
ReplyDeleteActually, studies indicate that children in stable and involved families do better than others, but not that children with different-sex or biologically related parents do better. See http://www.washingtonpost.com/blogs/wonkblog/wp/2013/03/29/scalias-gay-adoption-claim-even-wronger-than-i-thought/