I keep saying that gay marriage is a fait accompli because it is the natural consequence of deep historical forces that have moved through Western civilization for hundreds of years. Patrick Deneen comments in this vein, pointing out how the logic of the California court's ruling sweeps away any sense that marriage is anything but a social contract between consenting parties. Here's a quote from the ruling:
"The constitutionally based right to marry properly must be understood to encompass the core set of basic substantive legal rights and attributes traditionally associated with marriage that are so integral to an individual’s liberty and personal autonomy that they may not be eliminated or abrogated by the Legislature or by the electorate through the statutory initiative process. These core substantive rights include, most fundamentally, the opportunity of an individual to establish — with the person with whom the individual has chosen to share his or her life — an officially recognized and protected family possessing mutual rights and responsibilities and entitled to the same respect and dignity accorded a union traditionally designated as marriage."
Why "with the person with whom the individual has chosen to share his or her life"? Why not "the persons"? On what basis does the court divine an inalienable right for an individual, in the course of exercising his "personal autonomy," to establish a contract called "marriage" with only one other contractor? If marriage is nothing but a social contract in the eyes of the law, on what basis does the court deny the personal autonomy of individuals who wish to establish a polygamous marriage contract? There is, after all, ample evidence from history, even contemporary life, that polygamy exists. Gay marriage has never existed.
If we wish to declare it exists, that's one thing. But the court finds that it exists not as a matter of positive law, but of natural law. It's a meaningful distinction. And the court appears to have pulled it out of its penumbra. Deneen:
To my mind, what's most striking about the Court's decision is the language of the inviolability of "individual liberty and personal autonomy." These are the legal and Constitutional grounds on which a decision about the basis of marriage are being grounded. On the basis of such grounds, can there really be marriage at all, at least in a form that is worthy of defense? Aren't we really talking about an advantaged tax and property arrangement, one that can and should be altered at the will and inclination of the individual's "liberty and autonomy"? It is really nothing other than the contractual partnership defended in Locke's Second Treatise, sans the children (or at least conceived by the couple in question). And doesn't it permit any possible form of coupling, including ones not limited to couples (e.g., polygamy, etc., between consenting adults?)
Further:
With the advance of the logic of modern liberalism and free-market ideology, marriage has been increasingly justified by many (heterosexuals) in just the manner that gay marriage is being legally advanced. Many would seem to want to close the barn door after the horse has escaped, or at least a good way out of the door.
This, Deneen rightly asserts, is the heart of the marriage matter. Heterosexuals cannot claim for themselves that marriage under law is purely the public ratification of individual wills, with no meaning beyond that, and plausibly deny the privilege to homosexuals. But how many heterosexuals would be willing to give up the privileges they've carved out for themselves in the law? It's like Alan Ehrenhalt's argument in "The Lost City": that people today miss the security of the old 1950s-style neighborhoods, but they would not give up the personal autonomy they've gained since then, despite the verities and the cohesion they've lost.
And so the logic of atomization plays out. Ideas have consequences. If you don't like it, your quarrel is more with the men of the Enlightenment than with the justices of the California Supreme Court. And that's a fight you can't hope to win in the West. We are all, as MacIntyre said, either conservative liberals, liberal liberals or radical liberals. Here's a relevant bit from a 2003 John Allen column in National Catholic Reporter, in which Allen talks of the rise of several influential thinkers in the Catholic Church -- Notre Dame's Alasdair MacIntyre, Catholic U.'s David Schindler and Colgate's Robert Kraynak, among them -- who believe that Enlightenment liberalism are irreconcilable with authentic Christianity. Here's Allen:
In 1981, [the formerly Marxist] MacIntyre published After Virtue, in which he posed his famous choice between Niezstche and Aristotle. Either ethics is the assertion of personal preference, as Nieztsche would have it, or it corresponds to something objectively real, as Aristotle believed.In 1983, MacIntyre converted to the Catholic Church.
Through these twists and turns, the unifying constant in MacIntyre’s thought has been hostility to the bourgeois values of liberalism. MacIntyre tends to drive secular liberals crazy, since his point of departure is the same alienation from capitalism they feel, yet he arrives in a very different place: Thomism.
MacIntyre argues that when Thomists and secularists refer to human rights, for example, they sound like they’re saying the same thing, but this linguistic resemblance conceals radically different worldviews. Secularists emphasize rights because, having rejected the idea of an objective moral order, they exalt unfettered freedom. What freedom is for gets second shrift.
More from Allen's piece:
[T]he anti-liberal instinct favors social causes dear to the left, such as pacifism and advocacy for the poor.At the same time, it tends to side with the right in internal church debates. By accenting what makes Catholicism distinct, it favors traditionalism in liturgy, art and architecture, and theology. It is skeptical about the characteristic structures of liberalism, such as bureaucracy and reliance on so-called “experts.” When the Vatican in April convened a symposium of non-Catholic scientific experts on sexual abuse, for example, the event played to generally good reviews as a sign that Rome was listening. Catholics steeped in MacIntyre’s thought, on the other hand, were dubious, wondering if “experts” who don’t share the Church’s moral and metaphysical assumptions would end up doing more harm than good.
More:
I reached Kraynak by telephone at Colgate to discuss this negative judgment about Western, especially American, culture.“I share that to a large degree,” Kraynak said. “The whole Enlightenment underlay is the problem.”
Kraynak argued, in fact, that the sexual abuse scandals in the American Church have their roots here.
“I trace the scandals to the corrosive effect of American culture on the Church,” Kraynak said. “It started with the sexual revolution, plus the unwillingness of the hierarchy to assert its authority in the proper way. They more or less concluded that we share with liberalism a concern for social justice, so sexual ethics aren’t so important.”
I asked if such a sweeping indictment of modern culture doesn’t risk a sort of self-imposed ghetto.
“In the extreme case it might come to that,” Kraynak candidly replied. “If Catholics have to live in a world in which our view of the family, of human sexuality, of raising one’s kids, is considered contemptible by the larger culture, it could come to that in a generation.” [Emphasis mine -- RD.]
“My parents’ generation lived more like ghetto Catholics than we do. They had an inferiority complex, but spiritually and morally it had many benefits. They were able to live a life that was separate from mass culture, but still part of America. And along with feelings of inferiority, they could take pride in their distinctiveness as ethnic Catholics.”
Kraynak acknowledged that it would be impossible to return to the self-enclosed Catholic world of 1950s-era America, but he said the search for an analogous “safe haven” will intensify if present cultural trends continue.
[snip]
Obviously many Catholics would have reservations about the way Kraynak sizes things up, but he represents an important current of opinion, raising serious questions about the spiritual and moral dangers of consumer culture. This is a familiar discourse from the left; what is intriguing about this movement is that its energy and center of gravity is on the right, seeking to combine doctrinal orthodoxy with a strong counter-cultural impulse.
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"Ok, look, I don't know where you're really going with this. Max wanted to remove all faith."
Right, to remove all mentions of faith or faith-based arguments, positive or negative - am I right? I don't think he implied atheism.
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First of all, I did not want to "remove all faith". That's just another example of JPL not being able to comprehend. What I said was that I don't bring my faith into this discussion, and that's simply because so many here reject my faith. So what would be the purpose? If someone asks me about my faith, or makes a false claim about it in an address to me, then I will comment.
And it is true that I didn't imply atheism. Besides, I'm not one of those who hold that atheists have no morality. Obviously this is yet something else over which JPL and I disagree.
What I do claim is that there are secular arguments for what I hold.
Grigory, homosexual behaviors have been studied in animals for a very long time. The scientific basis for it in animals is well established. I will join you in questioning how much corrolation that has with human behavior, because science already has that caveat: they investigate the possible connections, but they have made no definitive statements about it for humans. If anyone is aware of specific literature around the animal-human connections, I'd like to see the citations.
David, we seem to be going in circles. I do appreciate the time you've taken, and I truly take your points.
The original motivation was an attitude (which I'd already characterized as paranoid) that this trend underlying hate crimes carried with it a seed of rational, reasonable doubt. Having been in a similar position of paranoia (around my being pagan), my motivation for carrying it forward in our discussion was to at least commiserate with those who hold that attitude, even while joining others (including you) in finding it if not silly, at least not so severe as they may think it is.
I've seen discussions by judges and attorneys (mostly defense) concerning mandatory minimums. While it doesn't have the same societal impact as hate crime/speech issues, it has the same detrimental effect on the judicial processes, at least in the views of those I've read. I don't recall the citations, but there have been a couple of stories in the last few weeks where judges' sentences were taken under review by higher courts because the judge attempted to contravene a mandatory minimum sentence.
David, we seem to be going in circles. I do appreciate the time you've taken, and I truly take your points.
Yeah, and I see the fear that it will be used as an attack on beliefs. There is a slippery slope there.
The problem is that hate crime legislation, while being almost completely unused, much less used inappropriately, has turned into a right-wing boogyman, the sort that they are very good at making.
They run around conflating it with hate speech laws, which we will never have, and making absurd hypothetical where someone 'accidentally' commits a hate crime. It is very strange and not at all law-and-order for Republicans to argue in favor of people convicted of crimes, but somehow their heart bleeds for the poor innocent anti-semitic person who assaults a Jewish person for a reason besides them being Jewish, cause they might wrongly have two years added to the sentence.
But somehow DNA testing for people wrongly convicted of crimes? Nah, that's too expensive. Making sure the accused have fair trials? Nah. Torture? Sure.
But making sure that people who actually are criminals (Which is, as conservatives are wont to forget, happens when they are actually convicted.) don't unfairly have a tiny amount possibly added to their sentence, in circumstances that almost never happen? Why, that's incredibly important! That's the slippery slope to thought-crime! Despite the fact it never happens...it could someday!
You know, it's worth pointing out that drug laws have unknowable additions to sentences. For example, it is very hard to determine if you're within 500 feet of some of the places that bump sentences up, like a private day care. And various other laws, like prostitution, with similar 'radius' penalties for places that sometimes are not obvious. Oddly enough, no one seems to find these sentencing bump unfair.
The ultimate example, of course, is entire crime of felony murder. People have been charged and convicted of felony murder during burglaries where the criminals were all unarmed, because their partner got killed by the police. No one seems to find this up-to-30-year-added crime unfair either.
But not, gasp, hate crimes! Suddenly, Republican are willing to defend actual criminals...if, and only if, they are bigots, in which case it's vitally important that their bigotry not alter their sentencing. (Despite, as I say below, this always happening anyway.) It really makes me suspect there's something else going on there.
I've seen discussions by judges and attorneys (mostly defense) concerning mandatory minimums. While it doesn't have the same societal impact as hate crime/speech issues, it has the same detrimental effect on the judicial processes, at least in the views of those I've read. I don't recall the citations, but there have been a couple of stories in the last few weeks where judges' sentences were taken under review by higher courts because the judge attempted to contravene a mandatory minimum sentence.
Mandatory minimums are a much much bigger threat to our judicial system than an added amount of punishment that can, once proved beyond a reasonable doubt, at the judge's discretion, be added to a sentence. Especially, as I said, judges already aren't too forgiving of premeditated crimes intended to terrorize groups of people in the first place, vs., say, a premeditated crime to kill a blackmailer, so hate crime laws just recognize that and place it into sentencing guidelines.
I'm not a huge fan of them, mainly because I think they are completely unnecessary because judges already punish people more with socially unacceptable motives. OTOH, I'm opposed to them because I think that asking that these motives be proven beyond a reasonable doubt is too hard and a waste of time, whereas other people objecting to them surreallly don't seem to notice that, without them, judges will just randomly and inconsistently apply punishments. (Of course, some especially bigoted judges have applied less punishment, the canonical example being that case in San Fransisco a few decades back where someone got away with murder because he also murdered a gay man, although that was actually the jury's fault.)
"Oh well. I don't understand liberal anger whatsoever - so far they have won every single cultural battle of importance, and the future seems only rosier for those of a progressive, secular persuasion."
Oh, right. We haven't even managed to get the flippen Equal Rights Amendment passed, not even now when American women are fighting and dying in Iraq to protect other people's freedoms.
Odd, but every single one of my posts has been "disappeared" from this thread. Am I persona non grata now?
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