same-sex marriage

The View from Here

You know what happens when a law is enacted to protect a “minority,” don’t you? The minority acquires privileged status in the eyes of the law. Any action that is claimed to deprive the “minority” of its rights brings the wrath of the state down on the purported offender. And the same law enables members of the “minority” to attain jobs, promotions, and university admissions for which they are otherwise unqualified.

My opening paragraph is prompted by the likely passage of a “gay rights in workplace” bill by the U.S. Senate. The bill is unlikely to be approved soon by the U.S. House of Representatives, but I won’t say “never.” Many members of the GOP are eager to seem “nice,” and enough of them might vote with Democrats to pass the bill and send it to B.O. for signature. Such an act of appeasement will, of course, go unrewarded by voters of the left. But panicked lawmakers are immune to logic, and devoid of principles.

The “gay rights” issue is only a symptom of America’s decay. The official elevation of gays to privileged status is of a piece with several other developments: the very possible failure of efforts to derail death-dealing Obamacare, the equally likely failure of efforts to curb murderous abortion (the gateway to involuntary euthanasia), the ever-growing dependence of Americans on an unaffordable welfare state, an unchecked regulatory apparatus, feminized and gutted defenses, groveling before enemies, and the suppression of dissent in the name of “rights,” “social justice,” “equal protection,” and other Orwellian catch-phrases.

It is altogether evident that America soon will be an irreversibly effete, statist, inhumane, and appeasing realm. In it, every truly beneficial impulse — like those that energized America’s revolution against Britain, the framing of a Constitution that promised the preservation of liberty, the defeat of oppressive regimes in wars hot and cold, and the creation of the world’s most dynamic and productive economy — will be squelched.

The barbarians within, and their willing dupes, are in the saddle. It can happen here, and it is happening here. America is about to become the land of the unfree and the home of the weak-kneed.

*     *     *

Related reading: Joe Herring, “I Am Now a Dissident (and You Should Be Too!),” American Thinker, November 6, 2013

Related posts:
Diversity
Putting Hate Crimes in Perspective
The Cost of Affirmative Action
Why Not Just Use SAT Scores?
The Face of America
Affirmative Action: A Modest Proposal
Race, Intelligence, and Affirmative Action
Affirmative Action: Two Views from the Academy
Affirmative Action, One More Time
Libertarianism, Marriage, and the True Meaning of Family Values
Same-Sex Marriage
“Equal Protection” and Homosexual Marriage
The Course of the Mainstream
A Contrarian View of Segregation
Much Food for Thought
Guilty Until Proven Innocent
After the Bell Curve
A Footnote . . .
Schelling and Segregation
Law, Liberty, and Abortion
Black Terrorists and “White Flight”
Positive Rights and Cosmic Justice: Part IV (with links to earlier parts of the series)
Timely Material
Affirmative Action: Two Views from the Academy, Revisited
It’s the Little Things That Count
A Footnote to a Footnote
Let Me Be Perfectly Clear…
FDR and Fascism
An FDR Reader
“Family Values,” Liberty, and the State
Is There Such a Thing as Society
The People’s Romance
Intellectuals and Capitalism
Fascism
Conspicuous Consumption and Race
An Honest Woman Speaks Out
Fascism with a “Friendly” Face
The Interest-Group Paradox
Parsing Political Philosophy
Is Statism Inevitable?
Inventing “Liberalism”
Civil Society and Homosexual “Marriage”
A New, New Constitution
Fascism and the Future of America
The Indivisibility of Economic and Social Liberty
Rights, Liberty, the Golden Rule, and the Legitimate State
The Perils of Nannyism: The Case of Obamacare
More about the Perils of Obamacare
Health-Care Reform: The Short of It
The Real Constitution and Civil Disobedience
The Near-Victory of Communism
Tocqueville’s Prescience
First Principles
The Shape of Things to Come
Accountants of the Soul
Invoking Hitler
Is Liberty Possible?
The Left
Perry v. Schwarzenegger, Due Process, and Equal Protection
The Constitution: Original Meaning, Corruption, and Restoration
Rationalism, Social Norms, and Same-Sex “Marriage”
A Moral Dilemma
A Conversation with Uncle Sam
Society and the State
I Want My Country Back
The “Forthcoming Financial Collapse”
Undermining the Free Society
Our Enemy, the State
Pseudo-Libertarian Sophistry vs. True Libertarianism
“Intellectuals and Society”: A Review
Government vs. Community
The Evil That Is Done with Good Intentions
The Destruction of Society in the Name of “Society”
About Democracy
Externalities and Statism
Taxes: Theft or Duty?
Bounded Liberty: A Thought Experiment
More Pseudo-Libertarianism
The Meaning of Liberty
The Left’s Agenda
Substantive Due Process and the Limits of Privacy
In Defense of Marriage
The Left and Its Delusions
The Destruction of Society in the Name of “Society”
A Declaration of Civil Disobedience
Crimes against Humanity
Abortion and Logic
The Myth That Same-Sex “Marriage” Causes No Harm
The Spoiled Children of Capitalism
Politics, Sophistry, and the Academy
Subsidizing the Enemies of Liberty
Society and the State
Are You in the Bubble?
Defense as an Investment in Liberty and Prosperity
Our Perfect, Perfect Constitution
Abortion, Doublethink, and Left-Wing Blather
Race and Reason: The Derbyshire Debacle
Race and Reason: The Victims of Affirmative Action
Not-So-Random Thoughts (III)
Race and Reason: The Achievement Gap — Causes and Implications
Don’t Use the “S” Word When the “F” Word Will Do
Liberty and Society
Tolerance on the Left
The Eclipse of “Old America”
The Capitalist Paradox Meets the Interest-Group Paradox
Genetic Kinship and Society
How Not to Cope with Government Failure
Riots, Culture, and the Final Showdown (revisited)
Where We Are, Economically
The Economic Outlook in Brief
Is Taxation Slavery?
Obamanomics: A Report Card
Well-Founded Pessimism
A Declaration of Independence
The 80-20 Rule, Illustrated
America: Past, Present, and Future
Defending Liberty against (Pseudo) Libertarians
America: Past, Present, and Future
Restoring Constitutional Government: The Way Ahead
Economic Horror Stories: The Great “Demancipation” and Economic Stagnation
The Fallacy of the Reverse-Mussolini Fallacy
“Conversing” about Race
Economics: A Survey
IQ, Political Correctness, and America’s Present Condition
The Barbarians Within and the State of the Union
Why Are Interest Rates So Low?
Estimating the Rahn Curve: Or, How Government Spending Inhibits Economic Growth
America’s Financial Crisis Is Now
The World Turned Upside Down
“We the People” and Big Government: Part I
“We the People” and Big Government: Part I (continued)
“We the People” and Big Government: Part II (first installment)

Not-So-Random Thoughts (VIII)

This is the eighth in a set of occasional posts that link to and discuss writings on matters that have been treated by this blog. The first of the posts is here; the second, here; the third, here; the fourth, here; the fifth, here; the sixth, here; and the seventh, here.

I begin with a post of mine, “Civil Society and Homosexual ‘Marriage’“:

[A]s sure as the sun sets in the west, the state will begin to apply the equal protection clause of the Fourteenth Amendment in order to protect homosexual “marriage” from its critics. Acting under the rubric of “civil rights” — and  in keeping with the way that anti-discrimination laws have been applied to date — the state will deal harshly with employers, landlords, and clergy who seem to discriminate against homosexual “marriage” and its participants.

And right on schedule:

[T]he New Mexico Supreme Court has found that a photographer who declined to photograph a gay “wedding” was at fault… (Tom Trinko, “New Mexico Takes a Stab at Nullifying the Constitution,” American Thinker, August 25, 2013)

See also my post “Abortion, ‘Gay Rights,” and Liberty.

*****

Keir Maitland nails the pseudo-libertarian mentality:

Libertarians are being torn apart from within. Two groups are responsible for this: the libertines and the liberal bigots. ‘Liberal bigots’ is a phrase that I have stolen from Peter Hitchens and I am using it to describe a group within the libertarian movement who are more concerned about being politically correct than defending anybody’s right to discriminate. By libertines, I mean simply those who view libertarianism as a rebellion against tradition, hierarchy, morality and authority….

The former, the liberal bigots, in my view are often ‘thin libertarians’ of the worst kind: libertarians who believe in the nonaggression axiom and nothing else. These people can only think in terms of libertarian legal theory and, as cultural Marxists, will defend anybody’s way of life, except, oddly enough, a traditionalist and antiegalitarian way of life. The latter, however, are usually ‘thick libertarians’…. Thick libertarians are libertarians who, in addition to being well-versed in libertarian law, think about how a libertarian society would, could and should function. Thick libertarians judge not only whether or not something is legal, but whether it is conducive to libertarian ends. However, sadly, the modal thick libertarian is a libertine: someone who believes that prosperity, happiness and other good ends, for which we all strive, are achieved not through a ‘sensible’ lifestyle but through a relatively reckless one. (“Libertines and Liberal Bigots,” Libertarian Alliance Blog, August 22, 2013)

Maitland’s assessment harmonizes with my own, which I’ve expressed in several posts, including “Defending Liberty against (Pseudo) Libertarians“:

(Pseudo) libertarians like to demonstrate their bogus commitment to liberty by proclaiming loudly their support for unfettered immigration, unfettered speech, unfettered abortion, unfettered same-sex coupling (and legal recognition thereof as “marriage’), and unfettered you-name-it.. In the minds of these moral relativists, liberty is a dream world where anything goes — anything of which they approve, that is….

Another staple of (pseudo) libertarian thought is a slavish devotion to privacy — when that devotion supports a (pseudo) libertarian position. Economists like Caplan and Boudreaux are cagy about abortion. But other (pseudo) libertarians are less so; for example:

I got into a long conversation yesterday with a [Ron] Paul supporter who took me to task for my criticisms of Paul’s positions. For one thing, he insisted, Paul’s position on abortion wasn’t as bad as I made it out, because Paul just thinks abortion is a matter for the states. I pointed out that in my book, saying that states can violate the rights of women [emphasis added] is no more libertarian than saying that the federal government can violate the rights of women.

Whence the “right” to abort an unborn child? Here, according to the same writer:

I do believe that abortion is a liberty protected by the Fourteenth Amendment….

This train of “logic” is in accord with the U.S. Supreme Court’s manufactured “right” to an abortion under the Fourteenth (or was it the Ninth?) Amendment, which I have discussed in various places, including here. All in the name of “privacy.”…

It is no wonder that many (pseudo) libertarians like to call themselves liberaltarians. It is hard to distinguish (pseudo) libertarians from “liberals,” given their shared penchant for decrying and destroying freedom of association and evolved social norms. It is these which underlie the conditions of mutual respect, mutual trust, and forbearance that enable human beings to coexist peacefully and cooperatively. That is to say, in liberty.

*****

A recent foray into constitutional issues unearthed this commentary about the opinion delivered by Chief Justice Roberts in the case of Obamacare:

Oh, how far we’ve deviated from our Founders in just over 200 years.

The entire country is pouring over an incoherent, internally contradictory, ill-conceived and politically motivated decision by Chief Justice Roberts, which grants Congress the power to regulate anything that moves and the power to tax anything that moves and anything that doesn’t move….

If we take the reasoning of Roberts to its logical conclusion, Congress would be able to coerce individuals to buy broccoli once a week, so long as they levy a tax on those who fail to comply with the law.  Putting aside the facial absurdity of Roberts’s tax power jurisprudence, his opinion on the Commerce Clause is nothing to cheer.  While Roberts clearly stated that the Commerce Clause does not grant the federal government the right to regulate inactivity (although it can evidently tax inactivity), he obliquely upheld their authority to regulate any activity under that misconstrued clause.

Amidst the garrulous analysis from the conservative pundit class on the Roberts decision, there is a one-page dissent from Justice Thomas (in addition to his joint dissent with the other 3 conservatives) that has been overlooked….

Take a look at this paragraph from Thomas’s dissent (last two-pages of pdf):

I dissent for the reasons stated in our joint opinion, but I write separately to say a word about the Commerce Clause. The joint dissent and THE CHIEF JUSTICE cor­rectly apply our precedents to conclude that the Individual Mandate is beyond the power granted to Congress under the Commerce Clause and the Necessary and Proper Clause. Under those precedents, Congress may regulate“economic activity [that] substantially affects interstate commerce.” United States v. Lopez, 514 U. S. 549, 560 (1995). I adhere to my view that “the very notion of a ‘substantial effects’ test under the Commerce Clause is inconsistent with the original understanding of Congress’ powers and with this Court’s early Commerce Clause cases.” United States v. Morrison, 529 U. S. 598, 627 (2000) (THOMAS, J., concurring); see also Lopez, supra, at 584–602 (THOMAS, J., concurring); Gonzales v. Raich, 545

….

Justice Thomas is hearkening back to the Founders.  Not only is every word of Obamacare unconstitutional and an anathema to every tenet of our founding, most of the other programs created in recent years are as well.  The fact that Roberts said the Commerce Clause and the Necessary and Proper Clause don’t apply to inactivity is not a victory for constitutional conservatives.  The implicit notion that the federal government can regulate any activity is appalling to conservatives.

Here’s what James Madison had to say about the Commerce Clause in a letter to Joseph C. Cabell in 1829:

For a like reason, I made no reference to the “power to regulate commerce among the several States.” I always foresaw that difficulties might be started in relation to that power which could not be fully explained without recurring to views of it, which, however just, might give birth to specious though unsound objections. Being in the same terms with the power over foreign commerce, the same extent, if taken literally, would belong to it. Yet it is very certain that it grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government, in which alone, however, the remedial power could be lodged.

….

The reality is that not only is Obamacare unconstitutional, almost every discretionary department, welfare program, and entitlement program is unconstitutional…. (Daniel Horowitz, “Thomas Dissents: It’s All Unconstitutional,” RedState (Member Diary), June 29, 2012)

On the general issue of the subversion of constitutional limits on governmental power, see “The Constitution: Original Meaning, Corruption, and Restoration.” Specifically related to Obamacare and the individual mandate: “The Unconstitutionality of the Individual Mandate,” “Does the Power to Tax Give Congress Unlimited Power?,” “Does Congress Have the Power to Regulate Inactivity?,” and “Obamacare: Neither Necessary nor Proper.”

*****

Also from RedState, a story that reads in part:

Sadly, we have deviated from our constitutional form of government over the past century.  That’s why Mark Levin has written The Liberty Amendments, a set of proposed constitutional amendments that will unambiguously downsize the federal government by targeting specific loopholes that have allowed the statists to adulterate our Constitution.  Far from this being a radically new vision, Levin proves – through founding documents and floor debates at the Constitutional Congress – how his ideas are in line with what the Founders envisioned in our Federal government.  It’s just that after years of deviating from the Constitution, it has become clear that we need very specific limitations on federal abuses – abuses that have gone far beyond the imagination of our Founders – in order to restore the Republic. (Daniel Horowitz, “Mark Levin’s Liberty Amendments,” Red State (Member Diary), August 13, 2013)

The story includes a good summary of Levin’s amendments. Recommended reading.

A New, New Constitution” covers the same ground, and more. It’s long, but it closes a lot of loopholes that have been opened by legislative, executive, and judicial action.

*****

I turn, finally, to a pair of items by James Pethokoukis with self-explanatory titles: “The Great Stagnation: JP Morgan Declares US Potential GDP Growth Just Half of What It Used to Be” (AEIdeas, August 12, 2013) and “Why Wall Street Thinks the Future Isn’t What It Used to Be” (AEIdeas, August 13, 2013). Read those pieces, and then go to “The Stagnation Thesis” (and follow the links therein) and “Why Are Interest Rates So Low?” (which is replete with more links). The latter post concludes with this:

As long as business remains (rightly) pessimistic about the twin burdens of debt and regulation, the economy will sink deeper into stagnation. The only way to overcome that pessimism is to scale back “entitlements” and regulations, and to do so promptly and drastically.

In sum, the present focus on — and debate about — conventional macroeconomic “fixes” (fiscal vs. monetary policy) is entirely misguided. Today’s economists and policy-makers should consult Hayek, not Keynes or Friedman or their intellectual descendants. If economists and policy-makers would would read and heed Hayek — the Hayek of 1944 onward, in particular –  they would understand that our present and future economic morass is entirely political in origin: Failed government policies have led to more failed government policies, which have shackled both the economy and the people.

Economic and political freedoms are indivisible. It will take the repeal of the regulatory-welfare state to restore prosperity and liberty to the land.

Amen.

As for how the regulatory-welfare state might be repealed, read “Restoring Constitutional Government: The Way Ahead.

Political Correctness vs. Civility

Rust belt philosopher (Eli Horowitz) doesn’t care for Stella Morabito’s “Dissecting Political Correctness” (Public Discourse, August 13, 2013). Here’s Horowitz’s commentary, in full:

Stella Morabito may be on the wrong side, but she’s not wrong just because she’s on the wrong side. So to speak.

“Victory in the war of ideas often hinges more on the conditions of battle than on the quality of arguments. You know this instinctively if you’ve ever been shouted down, smeared, or ignored when you were simply trying to state a point. Truly civil public discourse becomes much harder when our dialogue is hijacked by thought policing—euphemistically referred to as ‘political correctness,’ or PC.Political correctness has cultivated an illusion of support for laws that undermine fundamental institutions of society, including marriage and family. The only way to dispel this illusion, and to reverse the damage these laws will do, is to revive true civil discourse.”

Morabito’s tiresome bigotry aside, she describes in this article the idea of “an opinion cascade,” which (loosely) is the thing that happens when an idea achieves such memetic dominance that it is protected and promoted within a given group by the sorts of mechanisms that she describes (i.e., stigma, media endorsements, etc.); in short, a cascade is a thing that shifts “the conditions of battle.” You might think, given that description and the paragraphs above, that she was opposed to such cascades altogether. After all, she says that these cascades are at least sometimes incompatible with “truly civil public discourse,” which she takes to be a good and even a necessary thing. Yet the fact of the matter is quite the opposite: she likes cascades, just so long as they benefit her side.

“If enough people come out of isolation and shed the fear of speaking their minds, a genuine cascade of truth will ensue. Then civil society can be rebuilt, and real public discourse based on reason and logic can flourish.”

Clearly, this is unforgivably stupid. She begins by claiming that civil discourse cannot happen when people are “shouted down, smeared, or ignored,” and that’s absolutely correct. She also says that opinion cascades establish those forms of stigma, and that’s also correct. Put these two facts together and you’ll easily conclude that no cascade can be compatible with civil discourse, because every cascade will include the construction of new conversational stigmas. Pretty straightforward, right? Except then, at the end, Morabito fucks it up: her cascades, she says, allow civil discourse to flourish. Alas, that’s bullshit: the right cascades are the ones that establish the proper stigmas (among other criteria), and the proper stigmas do not stop being stigmas just because they’re proper.

Morabito’s main point seems to elude Horowitz. Morabito — perhaps not clearly enough — equates “opinion cascades” with “manufactured cascades,” and these are not the same as the social norms that manufactured cascades are meant to overturn. Long-standing norms are not manufactured cascades. As Edward Feser explains in “Hayek and Tradition,”

[t]radition, being nothing other than the distillation of centuries of human experience, itself provides the surest guide to determining the most rational course of action. Far from being opposed to reason, reason is inseparable from tradition, and blind without it. The so-called enlightened mind thrusts tradition aside, hoping to find something more solid on which to make its stand, but there is nothing else, no alternative to the hard earth of human experience….

Liberty and happiness cannot be found in the abstract; they must be found in the real world, among real people. There is no escaping the fact that the attainment of something like liberty and happiness requires the acceptance of — and compliance with — some social norms that one may find personally distasteful if not oppressive.

The knee-jerk libertarian and “liberal” will say, for example, that abortion and same-sex marriage are consistent with and required by liberty. But they are not. They are steps down a slippery slope toward the further loss of liberty, just as the “progressivism” of the Roosevelts nudged and pushed us down a slippery slope toward the regulatory-welfare state in which we are now mired.

Libertarians and “liberals” seem willing to credit is the possibility that abortion is of a piece with selective breeding and involuntary euthanasia, wherein the state fosters eugenic practices that aren’t far removed from those of the Third Reich. And when those practices become the norm, what and who will be next? Libertarians, of all people, should be alert to such possibilities. Instead of reflexively embracing “choice” they should be asking whether “choice” will end with fetuses.

The same principle applies to same-sex marriage; it will have consequences that most libertarians are unwilling to consider. Although it’s true that traditional, heterosexual unions have their problems, those problems have been made worse, not better, by the intercession of the state. (The loosening of divorce laws, for example, signaled that marriage was to be taken less seriously, and so it has been.) Nevertheless, the state — in its usual perverse wisdom — may create new problems for society by legitimating same-sex marriage, thus signaling that traditional marriage is just another contractual arrangement in which any combination of persons may participate. Heterosexual marriage — as Jennifer Roback Morse explains — is a primary and irreplicable civilizing force. The recognition of homosexual marriage by the state will undermine that civilizing force. The state will be saying, in effect, “Anything goes. Do your thing. The courts, the welfare system, and the taxpayer — above all — will “pick up the pieces.” And so it will go.

In sum, Morabito doesn’t f*** it up. She defends civilizing social norms against organized and virulent campaigns to overthrow them. (For a closer look at those campaigns and their essential dishonesty, see this and the third item in this post.)

Moreover, Horowitz’s language underscores Morabito’s point about the incivility of politically correct discourse. Morabito makes a polite case against the strident language of political correctness. Horowitz not only attacks Morabito’s argument (and gets it wrong), but also resorts to “tiresome bigotry,” “unforgivably stupid,” “fucks it up,” and “bullshit.” As if to prove Morabito’s charge, Horowitz commits a written version of “shouting down” and “smearing.”

Related posts:
I Missed This One
A Century of Progress?
The Marriage Contract
Feminist Balderdash
Libertarianism, Marriage, and the True Meaning of Family Values
Consider the Children
Marriage and Children
Same-Sex Marriage
“Equal Protection” and Homosexual Marriage
Social Norms and Liberty
A Footnote about Liberty and the Social Compact
Finding Liberty
The Harm Principle
Footnotes to “The Harm Principle”
The Harm Principle, Again
Parenting, Religion, Culture, and Liberty
“Family Values,” Liberty, and the State
On Liberty
Civil Society and Homosexual “Marriage”
Perry v. Schwarzenegger, Due Process, and Equal Protection
Rationalism, Social Norms, and Same-Sex “Marriage”
Pseudo-Libertarian Sophistry vs. True Libertarianism
The Myth That Same-Sex “Marriage” Causes No Harm
Bounded Liberty: A Thought Experiment
More Pseudo-Libertarianism
The Meaning of Liberty
Positive Liberty vs. Liberty
In Defense of Marriage
Not-So-Random Thoughts (IV) (third item)
Burkean Libertarianism
What Is Libertarianism?
True Libertarianism, One More Time
Liberty and Society
Tolerance on the Left
Liberty as a Social Construct: Moral Relativism?

A Man for No Seasons

A Man for All Seasons, originally a play by Robert Bolt and later an acclaimed film, is about Sir Thomas More (or Saint Thomas More, if you prefer),

the 16th-century Chancellor of England, who refused to endorse King Henry VIII‘s wish to divorce his ageing wife Catherine of Aragon, who could not bear him a son, so that he could marry Anne Boleyn, the sister of his former mistress.

Thomas More

opposed Henry [VIII]‘s separation from the Catholic Church [because it forbade divorce] and refused to accept the King as Supreme Head of the Church of England…. In 1535, [More] was tried for treason, convicted on perjured testimony and beheaded.

The title of the play

reflects … Bolt’s portrayal of More as the ultimate man of conscience. As one who remains true to himself and his beliefs under all circumstances and at all times, despite external pressure or influence, More represents “a man for all seasons”.

More’s constancy to principle stands in high relief against the amorality and immorality of normal political practices, past and present. These range from opportunism, flip-flopping, and log-rolling to deceit and lying to theft (disguised as “compassion”) and back-stabbing (both figurative and literal).

More’s constancy to principle also stands in high relief against the practice of tailoring one’s principles to fit the data at hand — or the data that one selects to justify one’s prejudices. I have found economists to be especially prone to such tailoring. For example, too many economists justify free markets on utilitarian grounds, that is, because free markets produce more (i.e., are more efficient) than regulated markets. This happens to be true, but free markets can and should be justified mainly because they are free, that is, because they allow individuals to pursue otherwise lawful aims through voluntary, mutually beneficial exchanges of products and services. Liberty is a principle, a deep value; economic efficiency is merely a byproduct of adherence to that value.

Economists are by no means the only practitioners of utilitarianism. It is rampant in the ranks of public intellectuals, and is exemplified in “Empiricism in politics: On opinions beyond the reach of data,” a piece by Will Wilkinson (hereinafter WW), which begins with this:

DAVID FRUM quotes the following passage of Charles Murray’s new book, “Coming Apart: The State of White America, 1960 – 2010″, in the midst of a long, scathing review (about which I here enter no opinion):

Data can bear on policy issues, but many of our opinions about policy are grounded on premises about the nature of human life and human society that are beyond the reach of data. Try to think of any new data that would change your position on abortion, the death penalty, legalization of marijuana, same-sex marriage or the inheritance tax. If you cannot, you are not necessarily being unreasonable.

I found this exceedingly odd. I can easily imagine what evidence would cause me to change my position on any of these issues. How about you? It’s a fun exercise, let’s try.

I will address, in turn, WW’s views on abortion, the death penalty, legalization of marijuana, same-sex marriage, and the inheritance tax.

Abortion. This is far and away the hardest one. I favour legal abortion…. I would seriously weigh this moral benefit ]a “culture of life”, which pays off in terms of greater general humanity and diminished cruelty] against the moral cost of reducing women’s control over their bodies….

Clearly, WW is a man in search of a principle upon which to hang his preference to allow persons “control over their bodies.” This– as a principle — would justify many immoral acts. For if one’s use of one’s body is not to be interfered with, on what basis could WW condemn murder, for example? And yet he does condemn it, implicitly, when he quibbles about the death penalty as a punishment for murder.

WW (I strongly suspect) might respond that he is talking only about control over what one does to oneself, as in the use of marijuana (to which I will come). But WW is unconvincing with respect to abortion. He is willing to recognize “robust moral rights” for children at birth because that is “the convention.” But before the U.S. Supreme Court overturned long-standing State laws rooted in moral tradition, it was the convention (in most States) to recognize robust moral rights for children at conception. (By contrast, the convention of slavery, which was recognized and fostered by several States, stood on flimsy moral ground.)

The lack of a firm principle (e.g., abortion is murder) leads WW into sophistry and hair-splitting. These abound in the elided portions of the preceding quotation:

…I don’t think embryos or fetuses are persons, and I don’t think it’s wrong to kill them. I also don’t think infants are persons, but I do think laws that prohibit infanticide are wise. Birth is a metaphysically arbitrary line, but it’s a supremely salient socio-psychological one. A general abhorrence of the taking of human life is something any healthy culture will inculcate in its members. It’s easier to cultivate the appropriate moral sentiments within a society that has adopted the convention of conferring robust moral rights on infants upon birth than it would be in a society that had adopted the convention of conferring the same rights on children only after they’ve reached some significant developmental milestone, such as the onset of intelligible speech. The latter society, I suspect, would tend to be more generally cruel and less humane. This is just an empirical hunch, though I feel fairly confident about it. But I could be wrong. And I could be wrong in the other direction as well. If it were shown that societies which ban abortion, or which ban abortion beyond a certain point, exceed societies which don’t ban abortion in cultivating a “culture of life”, which pays off in terms of greater general humanity and diminished cruelty, I would seriously weigh this moral benefit against the moral cost of reducing women’s control over their bodies. Also, if it were shown that abortion tended to damage women’s mental and physical health more than forcing women to carry unwanted pregnancies to term, I would tend to look more favourably on restrictions on abortion, especially for minors.

Fetuses may not be persons, in WW’s view, but fetuses are human life. WW’s defense of abortion amounts to a defense of taking blameless, defenseless humans. He cannot bring himself to admit that, so he adopts the language of Roe v. Wade (a fetus is not “a person within the meaning of the Fourteenth Amendment”). But, as WW acknowledges, there is no specific point at which a human being becomes a “person.” The fetus-person distinction is an entirely arbitrary one, concocted for the purpose of justifying abortion.

If WW is willing to accept birth as the point at which the taking of innocent life becomes unacceptable, why not seven or eight months into a pregnancy, when the chances of survival outside the womb are high, especially given the life-sustaining technologies that are now available? And if a fetus is “viable” at seven or eight months, it is “viable” at earlier stages of development, as long its life is not ended artificially. The “logic” of abortion based on “viability” is circular because a fetus is (almost always) “viable” unless it is aborted.

And why is it not even “easier to cultivate the appropriate moral sentiments within a society that has adopted the convention of conferring robust moral rights on infants” upon conception? Such a society, I believe, would tend to be less cruel and more humane than the one that allows abortion at every stage of fetal development.

WW’s next suggestion is fatuous in the extreme. It need not be shown that societies which ban abortion, or which ban abortion beyond a certain point, exceed societies which do not ban abortion in cultivating a “culture of life.” Societies that ban abortion, ceteris paribus, have a culture of life, by definition. By the same token, societies that encourage or acquiesce in atrocities against humanity on a par with abortion (e.g., the Third Reich) have a culture of death. One very good reason for resisting the practice of abortion is to avert the next steps down the slippery slope toward that culture.

Looking unfavorably upon abortion if it tended to damage women’s mental and physical health is putting a possible side effect of abortion above its abhorrent moral status. But that should come as no surprise because, on this issue, WW clearly betrays a lack of moral sense.

This brings me to WW’s next moral test:

Death penalty. This is a lot easier. I oppose the death penalty. But if the death penalty were shown to be (1) a very effective deterrent of murder and violent crime, (2) non-prejudicially applied, and (3) very rarely applied to the innocent, I would support it in especially heinous cases of murder.

This is a lot easier for me, too. You are either for the death penalty as a matter of justice (taking its deterrent value as a bonus), or you are against it because, say, you cannot condone the taking of life by the state. WW, as an advocate of abortion, cannot take the latter position, so he dances around the death penalty — treating it entirely as an exercise in utilitarian calculation. In reality, he takes no position at all because he uses wiggle-words like “very effective,” “non-prejudicially,” “very rarely,” and “especially heinous.”

Thirdly:

Legalisation of marijuana. I support legal weed! If it were shown that marijuana is super-addictive, impossible to use responsibly, and that its users predictably harm others and/or egregiously harm themselves, I’d support something in the neighbourhood of status quo prohibition.

I have a strong suspicion that only a small fraction of the users of marijuana are detected and prosecuted for their use. That is to say, I view legalization as a bogus issue. But the purported harmlessness of marijuana allows libertarians to replay the pro-abortion theme: control over one’s body. However, WW (unlike most libertarians who write about drug use) seems willing to concede that the use of marijuana ought to be made illegal if it would “egregiously harm” the user. This suggests that control over one’s body is not sacrosanct.

But what is the deeper principle that determines where and when one has control over one’s body? I find no clue in WW’s article. There is no “moral there” there. Being pro-abortion, anti-death penalty, pro-marijuana, and pro-same-sex marriage are attitudes, the possession of which marks one as “liberal” and “open-minded.” But bottomless.

And so on:

Same-sex marriage. I’m so pro, I almost wish I were gay so I could have one. If compelling evidence were unearthed that showed that widespread same-sex marriage really would precipitate the unraveling of the traditional family and subsequently the stability of society and the ruin of us all, I suppose I’d settle for the right of same-sex couples to shack up.

“Compelling evidence” about the effects of same-sex “marriage” on society can be had only by the widespread legalization of same-sex “marriage” over a long period, by which time it would be impossible to undo the damage caused by same-sex “marriage.” Would it not be better to exercise one’s moral judgment about the effects of state action before that action is taken?

In the case of same-sex “marriage” the judgment goes like this: Marriage, as the union of a man and a woman, is a social-religious convention, which (until modern times) had a legitimacy and standing that did not depend on state action. State involvement in marriage — as in other social arrangements — undermines its significance as a deep and socially beneficial commitment. The undermining process began in earnest with state action that eased divorce. Widespread governmental recognition of same-sex “marriage” would accelerate the undermining process. The state would effectively convert marriage from a social-religious commitment to a licensed arrangement devoid of social-religious meaning. This would reinforce the trend toward cohabitation, with all that it implies: convenience rather than commitment, greater ease of breakup, temporary couplings where one partner (usually the man) has no stake in the proper upbringing of  the other partner’s children, psychologically and (all-too-often) physically damaged children who are more prone than their “traditional” counterparts to economically unproductive and socially destructive behaviors.

Why not think things through instead making a show of demanding “evidence” that can be obtained only when it is too late to do any good? Well, the answer to that question is obvious: WW wants same-sex “marriage” — the evidence be damned.

Finally:

Inheritance tax. I don’t have an especially strong opinion about this, other than that the “death tax” tends not to be very efficient and that large bequests aren’t an especially important source of inequality or the reproduction of class. So, I guess I’d need to learn that inheritance taxes don’t create a lot of wasteful, evasive resource shuffling, and do significantly contribute to class mobility if I were to develop a more favourable opinion of them.

That is about as clueless as it gets. Where is the right to do with one’s property as one likes, as long as the doing is not harmful to others? What a strange oversight by WW,  given his commitment to the control of one’s own body. If a person cannot control the legitimate produce of his bodily labors, he lacks effective control of his body.

If consequences were all, as they seem to be for WW, the ability to leave an inheritance is an incentive to do productive things, either directly or by making loans and investments that enable others to do productive things. For what earthly reason would anyone want to blunt or cancel that incentive? Out of a sense of “fairness”? What gives the likes of WW and Barack Obama the ability to reach into the minds and souls of millions of Americans and judge their relative worthiness to make and receive bequests? The inheritance tax is an exercise in social engineering that any self-respecting libertarian ought to reject categorically, not provisionally, as WW does.

WW often posts sensible things at his various outlets. But “Empiricism in politics” is a sign that WW should take a break from punditry, as he has said he might. On the basis of “Empiricism,” I would characterize WW as a man who knows the price of everything and the value of nothing. He pays lip-service — but nothing more — to the value of social traditions. He stands ready to jettison them at the drop of a statistic. As I have said, he is far from the sole possessor of that trait. I single him out here because “Empiricism” is an exemplar of utilitarian amorality.

*   *   *

Related reading: Jay W. Richards, “Should Libertarians Be Conservatives?: The Tough Cases of Abortion and Marriage

Related posts (with many more linked therein):
Libertarian Twaddle about the Death Penalty
Law, Liberty, and Abortion
Clear Thinking about the Death Penalty
Another Argument for the Death Penalty
Crime, Explained
A Wrong-Headed Take on Abortion
“Family Values,” Liberty, and the State
Is There Such a Thing as Society
Greed, Cosmic Justice, and Social Welfare
Enough of “Social Welfare”
The Case of the Purblind Economist
Pseudo-Libertarian Sophistry vs. True Libertarianism
Positivism, “Natural Rights,” and Libertarianism
The Golden Rule and the State
Libertarian Conservative or Conservative Libertarian?
Bounded Liberty: A Thought Experiment
Evolution, Human Nature, and “Natural Rights”
More Pseudo-Libertarianism
More about Conservative Governance
The Meaning of Liberty
Substantive Due Process and the Limits of Privacy
Positive Liberty vs. Liberty
On Self-Ownership and Desert
In Defense of Marriage
What Is Justice?
Myopic Moaning about the War on Drugs
Creative Destruction, Reification, and Social Welfare
Burkean Libertarianism
Crimes against Humanity
Abortion and Logic
What Is Libertarianism?
True Libertarianism, One More Time
Human Nature, Liberty, and Rationalism
Utilitarianism and Psychopathy
The Myth That Same-Sex “Marriage” Causes No Harm
The Libertarian-Conservative Fusion Is Alive and Well
Cato, the Kochs, and a Fluke
Why Conservatism Works
Abortion, Doublethink, and Left-Wing Blather

The Equal-Protection Scam and Same-Sex Marriage

Steven Horwitz, writing at Bleeding Heart Libertarians, opines that

In the world that exists, where the state is involved in marriage, I believe that….

Libertarianism requires  [federal recognition of same-sex marriage], as we often forget that the classical liberal tradition was built on two pillars: the rights of the individual against the state and equality before the law. The state may not discriminate. If it offers a benefit to some, it must offer it to all who are equally situated….

Suppose we had a Social Security system in which all residents of the US paid FICA but only white ones received the benefits. Would you argue that the libertarian position is to continue to deny people of color access to Social Security benefits on the grounds that giving the benefits to them would “extend federal power?” Would you continue to insist that the only libertarian position is to argue for the elimination of Social Security even though it continues to benefit only whites?

Double hogwash!

First, homosexuals are not “equally situated” with respect to heterosexuals. They want to call “marriage” something that cannot be marriage, as marriage has been understood for thousands of years: the union of a man and a woman in a lifelong commitment to each other. Homosexuals may choose to enter into private relationships that they call “marriage” — and no one can stop them — but those relationships are not manifestations of the time-honored social institution known as marriage.

Second, the analogy with Social Security is inapt. The recognition of marriage by the state is not a “benefit” in the same way as Social Security; that is, it is not a form of remuneration based on “contributions” to a (fictional) insurance pool. Social Security benefits are a quid pro quo; the recognition of marriage is a grant of status, in the same way that naturalization is a grant of status — the status of citizen. The state may make and change the qualifications for citizenship, because the power to do so is inherently a function of the state. But the state may not make and change the essential nature of marriage, which is a social phenomenon.

Where the state chooses to call a homosexual “marriage” a marriage, it simply indulges in legal fiction. But it is not harmless legal fiction — a crucial point that eludes “libertarians” like Horwitz; thus:

The recognition of homosexual “marriage” by the state — though innocuous to many, and an article of faith among most libertarians and liberals — is another step down the slippery slope of societal disintegration. The disintegration began in earnest in the 1930s, when Americans began to place their trust in chimerical, one-size-fits-all “solutions” offered by power-hungry, economically illiterate politicians and their “intellectual” enablers and apologists. In this instance, the state will recognize homosexual “marriage,” then bestow equal  benefits on homosexual “partners,”  and then require private entities (businesses, churches, etc.) to grant equal benefits to homosexual “partnerships.” Individuals and businesses who demur will be brought to heel through the use of affirmative action and hate-crime legislation to penalize those who dare to speak against homosexual “marriage,” the privileges that flow from it, and the economic damage wrought by those privileges.

It should be evident to anyone who has watched American politics that even-handedness is not a matter of observing constitutional limits on government’s reach, regardless of who asks for an exception; it is, rather, a matter of expanding the privileges bestowed by government so that no one is excluded. It follows that the recognition and punitive enforcement of same-sex “marriage” would be followed by the recognition and bestowal of benefits on other arrangements, including transient “partnerships” of convenience. And that surely will weaken heterosexual marriage, which is the axis around which the family revolves. The state will be saying, in effect, “Anything goes. Do your thing. The courts, the welfare system, and the taxpayer — above all — will pick up the pieces.” And so it will go….

Given the signals being sent by the state, the rate of formation of traditional, heterosexual marriages will continue to decline. (According to the Census Bureau, the percentage of adult males who are married dropped steadily from 71.1 percent in the 1960 census to 58.6 percent in the 2000 census; for females, the percentage dropped from 67.4 to 54.6. (The latest available figures, for 2009, show no significant change since 2000.) About half of each drop is explained by a rise in the percentage of adults who never marry, the other half by a rise in the percentage of divorced adults. Those statistics are what one should expect when the state signals — as it began to do increasingly after 1960 — that traditional marriage is no special thing by making it easier for couples to divorce, by subsidizing single mothers, and by encouraging women to work outside the home.

The well-known effects of such policies include higher rates of crime and lower levels of educational and economic achievement. (See this and this, for example.) Same-sex marriage would multiply these effects for the sake of mollifying a small minority of the populace.

A “libertarian” like Horwitz will assert that all such considerations are beside the point — as if the only point of liberty is “self-actualization” or similar clap-trap. I do wish that these self-styled “libertarians” would grow up and shut up.

Related posts:
Libertarianism, Marriage, and the True Meaning of Family Values
Same-Sex Marriage
“Equal Protection” and Homosexual Marriage
“Family Values,” Liberty, and the State
On Liberty
Civil Society and Homosexual “Marriage”
Perry v. Schwarzenegger, Due Process, and Equal Protection
Rationalism, Social Norms, and Same-Sex “Marriage”
Pseudo-Libertarian Sophistry vs. True Libertarianism
Libertarian Conservative or Conservative Libertarian?
Liberty, Equality, Fraternity: Part I
Bounded Liberty: A Thought Experiment
More Pseudo-Libertarianism
The Meaning of Liberty
Positive Liberty vs. Liberty
In Defense of Marriage
Burkean Libertarianism
Rights: Source, Applicability, How Held
What Is Libertarianism?
True Libertarianism, One More Time
Human Nature, Liberty, and Rationalism
The Myth That Same-Sex Marriage Causes No Harm
The Libertarian-Conservative Fusion Is Alive and Well
What Is Bleeding-Heart Libertarianism?

The Myth That Same-Sex “Marriage” Causes No Harm

Stephen J. Heaney writes at Public Discourse, in “Abortion, Divorce and “Same-Sex Marriage”: No Blood, No Foul?“:

Human beings are both rational and social creatures. We live not in herds but in ordered societies. We do this because it is good for us: the order of society that is necessary for us to live well is preserved by government and laws. If our government and laws do not help us to flourish (or if they actually assault our well-being), it is impossible to justify living under that government or those laws.

If government exists to support us in our flourishing, then it is obligated, in the deepest sense, to function in accordance with the truth of what is fitting for us. It is obligated to try to protect us from harm, and to support us in what is good for us….

The cause du jour, the primary contest over human flourishing, is the debate over the meaning of marriage.

The truth of marriage is that it can only exist between one man and one woman, for the sake of the children who may come as a result of their sexual union. Thus government is obligated to recognize the truth of marriage; to protect and support that project of bringing children into the world and caring for them; to recognize all and only actual marriages; and to discourage sexual acts in other contexts.

Proponents of same-sex marriage might well note here that my argument about the harm I undergo makes sense only if one agrees with my understanding of sex and marriage. This is, of course, true. With a different understanding of marriage, one might argue that same-sex couples are harmed by the lack of marital status because they believe it is owed to them.

The simple fact that no one in the entire history of humanity has ever thought it even possible for two people of the same sex to marry should give us pause. If it does not, then arguments about the nature of marriage should. I have argued previously in Public Discourse that marriage exists only as the union of one man and one woman, declared before the community, because the community has a stake in the outcome of their sexual union, i.e., children. If it were not the case that sex leads naturally (though not in every case) to children, the community would have no interest in the relationship, any more than in any other relationship of friendship or amusement. Indeed, it is impossible to imagine how anyone would have thought up the idea in the first place.

On the other hand, those who support same-sex “marriage” do so with an argument that looks something like this: “Nobody talks that way anymore. Nobody acts that way anymore. Therefore marriage has changed.” They look around at a society that, at least in practice, behaves as if sex and marriage mean nothing more than whatever the people who enter into a relationship want it to mean.

We may note that the conclusion of the above argument does not follow from the premises. The fact that many people think and act differently these days about marriage does not change the nature of marriage, any more than the nature of a cat would change if we decided to treat it like a rosebush.

If marriage is what they say it is, however, then marriage is nothing more than a contract. And if it is merely a contract, then the proper response of government and law is not to legalize same-sex marriage; it is to get out of the marriage business entirely. Law’s function, then, would be merely to help settle disputes between people who claim contracts have been violated. Any harm involved would be entirely a function of the terms of the contract, not the nature or circumstances of the people involved.

If, however, the nature of marriage is what I have argued for here, then two people who are literally incapable of marrying one another are not suffering a harm, or even a loss, when the society refuses to call their relationships a marriage. There is a difference between suffering a loss and simply not getting what one wants.

My wife, my children, and I are harmed when the government turns its back on the truth of marriage, and thus turns its back on its citizens’ flourishing. The government may force me to send my children to schools that mandate the celebration of same-sex relationships, thus violating my rights as a parent. It may prosecute me for hate crimes for the very expression of my views, thus violating my freedom of conscience and speech. I hope not. These harms are not a logically necessary outcome of the recognition of same-sex marriage, so perhaps that threat will dissipate. But the other harms that I have spelled out above are indeed necessary and harmful consequences of the adoption of same-sex marriage. The proper response of society to the widespread abuse of sex and marriage is not to multiply the harm by abandoning the truth. Rather, it is to get back on the right track.

My own view of same-sex “marriage” is remarkably similar to Heaney’s, even though my view has a different provenance than Heaney’s religious-philosophical one; for example:

The recognition of homosexual “marriage” by the state — though innocuous to many, and an article of faith among most libertarians and liberals — is another step down the slippery slope of societal disintegration. The disintegration began in earnest in the 1930s, when Americans began to place their trust in chimerical, one-size-fits-all “solutions” offered by power-hungry, economically illiterate politicians and their “intellectual” enablers and apologists. In this instance, the state will recognize homosexual “marriage,” then bestow equal  benefits on homosexual “partners,”  and then require private entities (businesses, churches, etc.) to grant equal benefits to homosexual “partnerships.” Individuals and businesses who demur will be brought to heel through the use of affirmative action and hate-crime legislation to penalize those who dare to speak against homosexual “marriage,” the privileges that flow from it, and the economic damage wrought by those privileges.

It should be evident to anyone who has watched American politics that even-handedness is not a matter of observing constitutional limits on government’s reach, regardless of who asks for an exception; it is, rather, a matter of expanding the privileges bestowed by government so that no one is excluded. It follows that the recognition and punitive enforcement of same-sex “marriage” would be followed by the recognition and bestowal of benefits on other arrangements, including transient “partnerships” of convenience. And that surely will weaken heterosexual marriage, which is the axis around which the family revolves. The state will be saying, in effect, “Anything goes. Do your thing. The courts, the welfare system, and the taxpayer — above all — will pick up the pieces.” And so it will go….

Given the signals being sent by the state, the rate of formation of traditional, heterosexual marriages will continue to decline. (According to the Census Bureau, the percentage of adult males who are married dropped steadily from 71.1 percent in the 1960 census to 58.6 percent in the 2000 census; for females, the percentage dropped from 67.4 to 54.6. (The latest available figures, for 2009, show no significant change since 2000.) About half of each drop is explained by a rise in the percentage of adults who never marry, the other half by a rise in the percentage of divorced adults. Those statistics are what one should expect when the state signals — as it began to do increasingly after 1960 — that traditional marriage is no special thing by making it easier for couples to divorce, by subsidizing single mothers, and by encouraging women to work outside the home.

The well-known effects of such policies include higher rates of crime and lower levels of educational and economic achievement. (See this and this, for example.) Same-sex marriage would multiply these effects for the sake of mollifying a small minority of the populace.

There is plenty of harm to be done by the state’s recognition of same-sex “marriage.” Heaney is right to warn against that harm.

For a deeper examination of the effects of state action on morality, see Francis J. Beckwith’s “Government Forms (or Deforms) Souls.”

Related posts:
I Missed This One
A Century of Progress?
The Marriage Contract
Feminist Balderdash
Libertarianism, Marriage, and the True Meaning of Family Values
Consider the Children
Marriage and Children
Same-Sex Marriage
“Equal Protection” and Homosexual Marriage
Parenting, Religion, Culture, and Liberty
“Family Values,” Liberty, and the State
On Liberty
Civil Society and Homosexual “Marriage”
Perry v. Schwarzenegger, Due Process, and Equal Protection
Rationalism, Social Norms, and Same-Sex “Marriage”
Pseudo-Libertarian Sophistry vs. True Libertarianism
Libertarian Conservative or Conservative Libertarian?
Liberty, Equality, Fraternity: Part I
Bounded Liberty: A Thought Experiment
More Pseudo-Libertarianism
The Meaning of Liberty
Positive Liberty vs. Liberty
In Defense of Marriage

In Defense of Marriage

This post joins some old and new observations about same-sex “marriage.” I not only repudiate the travesty of homosexual “marriage” but also those so-called libertarians who would (unwittingly) harm the cause of liberty by their insistence on a “right” to same-sex “marriage.” In the end, I remind the reader that there is more to liberty than the mindless parroting of phrases like “fairness,” “justice,” and “equal protection of the laws.”

SAME-SEX “MARRIAGE” AS A LITMUS TEST

It is my firm impression that most self-described libertarians — and “liberals,” it should go without saying — view same-sex “marriage” as a right. “Libertarian” bloggers X and Y are typical of the breed.[1]

Blogger X, a professed homosexual, states flatly that “I’m being discriminated against, and I want it to stop.”

Blogger Y, a known heterosexual, takes a complementary tack. For example, he calls Ron Paul’s support of the Defense of Marriage Act[2] (DOMA) “state-sponsored bigotry.” Actually, Paul was criticizing the Obama administration for failing to support DOMA because the act

used Congress’ constitutional authority to define what other states have to recognize under the Full Faith and Credit Clause, to ensure that no state would be forced to recognize a same sex marriage license issued in another state.

Paul adds:

I will stand … against Unconstitutional federal power grabs, and will fight to protect each state’s right not to be forced to recognize a same sex marriage against the will of its people.

Y seems to view Paul’s defense of States’ rights as wrong — in this instance, at least — because the definition of marriage as the union of one man and one woman denies marriage to homosexual couples. Further, that denial seems — in Y‘s view — to arise from bigotry. Perhaps it does, in Paul’s case, but I am here to defend marriage, not a crotchety Texan (see this, this, and this, for example).

SAME-SEX “MARRIAGE” IS A PSEUDO-LIBERTARIAN CAUSE

Blogger Y‘s position is a manifestation of the kind of rationalistic, political correctness that is common among left (psuedo)-libertarians. Will Wilkinson, for example, suggests that

most PC episodes mocked and derided by the right are not state impositions. They are generally episodes of the voluntary social enforcement of relatively newly established moral/cultural norms.

Wilkinson grossly simplifies the complex dynamics of PCness. His so-called “newly established … norms” are, in fact, norms that have been embraced by insular élites (e.g., academics and think-tank denizens like Wilksinson) and then foisted upon “the masses” by the élites in charge of government and government-controlled institutions (e.g., tax-funded universities). Thus it is no surprise that proposals to allow same-sex “marriage” fare poorly when they are submitted to voters.

Pseudo-libertarianism of the kind evidenced by Wilkinson is no better than any other kind of rationalism. It simply posits a sterile, abstract standard of conduct — one that has nothing to do with the workaday world of humanity — and finds wanting everyone but those who pay lip-service to that standard of conduct.

That is not libertarianism. It is sophomoric dream-spinning.

Where is libertarianism to be found? In conservatism, of all places, because it is a reality-based political philosophy.

But what does conservatism have to do with libertarianism? I have in various posts essayed an answer to that question (here, here, here, and here, for example), but now I turn the floor over to John Kekes, who toward the end of “What Is Conservatism?” says this:

The traditionalism of conservatives excludes both the view that political arrangements that foster individual autonomy should take precedence over those that foster social authority and the reverse view that favours arrangements that promote social authority at the expense of individual autonomy. Traditionalists acknowledge the importance of both autonomy and authority, but they regard them as inseparable, interdependent, and equally necessary. The legitimate claims of both may be satisfied by the participation of individuals in the various traditions of their society. Good political arrangements protect these traditions and the freedom to participate in them by limiting the government’s authority to interfere with either.

Therein lies true libertarianism — true because it is attainable. Left-libertarians believe, foolishly, that liberty is to be found in the rejection of social norms. Liberty would be the first victim of the brave new disorder that they wish for.

If there is a truly libertarian case for same-sex “marriage,” it can be made only by invoking the possibility of voluntary social acceptance of same-sex couples who bond in a manner analogous to the bonding of heterosexual couples. But analogy is not identity, just as reliance on the edicts of the state is not a proper libertarian approach to social change.

OPPOSITION TO SAME-SEX MARRIAGE IS NOT INHERENTLY BIGOTED

Many (if not most) persons who oppose same-sex “marriage” are animated not by an animus toward homosexuals but by respect for the time-honored status of marriage — in the Western tradition — as a monogamous, heterosexual union. Is it bigotry to defend a traditional institution from redefinition at the hands of the state? I think not. The state’s proper role is to protect citizens and their voluntary institutions, not to undermine or usurp those institutions. Therefore, if the state is going to involve itself in voluntary institutions, it ought to do so only for the purpose of ensuring that those institutions are not reshaped involuntarily.

The only bigotry that I see is the bigotry of individuals like X and Y, who denigrate those who would preserve the traditional character of marriage. I remind X, Y, and others who cry “discrimination” and “bigotry” that marriage — in its Judeo-Christian roots — is a social institution that was established for the purpose of solemnizing and legitimating the union of man and woman — not for the purpose of causing harm to anyone.

As for the opponents of same-sex “marriage,” I do not believe that a general charge of bigotry on their part can stand scrutiny. I have no doubt that some defenders of traditional marriage defend it solely or mainly because they despise homosexuals, their “differentness,” and their sexual practices. But such exceptions do not change the fact that marriage is not an institution founded on bigotry.

TRADITIONAL MARRIAGE IS A LIBERTARIAN INSTITUTION

Moreover, there is a compelling, libertarian reason to preserve the time-honored status of marriage as the union of man and woman. It is an institution whose preservation is vital to civil society, upon which liberty depends:

[I]t is impossible and — more importantly — undesirable for government to police everyone’s behavior. Liberty depends, therefore, on the institutions of society — family, church, club, and the like — through which individuals learn to treat one another with respect, through which individuals often come to the aid of one another, and through which instances of disrespect can be noted, publicized, and even punished (e.g., by criticism and ostracism).

That is civil society. And it is civil society which — in the minarchistic view — government ought to protect instead of usurping and destroying as it establishes its own agencies (e.g., public schools, welfare), gives them primary and even sole jurisdiction in many matters, and funds them with tax money that could have gone to private institutions. Moreover, some minarchists aver that government ought to tolerate a broad range of accepted behaviors across the various institutions of civil society, as long as government also protects the negative rights of association and exit: the right to associate with persons of one’s choosing, and the right to live and work where one prefers.

Marriage — despite its imperfections and the state’s involvement (e.g., licensing, separation proceedings, divorce decrees) — remains a bulwark of civil society, or of the remnants of civil society that have survived usurpation and negation by the state. Therefore, the proponents of state-imposed same-sex “marriage” bear the burden of proving that the expansion of marriage to include homosexual partnerships will redound to the benefit of civil society. Saying that opposition to same-sex marriage amounts to bigotry is no kind of proof.

This leads me to ask  whether (1) state-imposed homosexual “marriage” would be deleterious to civil society in the long run, and (2) if marriage loses its traditional definition, any institution of civil society is immune from the depradations of the state.

On the question of the long-run effects of state-imposed homosexual “marriage,” I turn to Jennifer Roback Morse:

Marriage is a naturally occurring, pre-political institution that emerges spontaneously from society. Western society is drifting toward a redefinition of marriage as a bundle of legally defined benefits bestowed by the state. As a libertarian, I find this trend regrettable. The organic view of marriage is more consistent with the libertarian vision of a society of free and responsible individuals, governed by a constitutionally limited state…..

My central argument is that a society will be able to govern itself with a smaller, less intrusive government if that society supports organic marriage rather than the legalistic understanding of marriage….

The new idea about marriage claims that no structure should be privileged over any other. The supposedly libertarian subtext of this idea is that people should be as free as possible to make their personal choices. But the very nonlibertarian consequence of this new idea is that it creates a culture that obliterates the informal methods of enforcement. Parents can’’t raise their eyebrows and expect children to conform to the socially accepted norms of behavior, because there are no socially accepted norms of behavior. Raised eyebrows and dirty looks no longer operate as sanctions on behavior slightly or even grossly outside the norm. The modern culture of sexual and parental tolerance ruthlessly enforces a code of silence, banishing anything remotely critical of personal choice. A parent, or even a peer, who tries to tell a young person that he or she is about to do something incredibly stupid runs into the brick wall of the non-judgmental social norm….

No libertarian would claim that the presumption of economic laissez-faire means that the government can ignore people who violate the norms of property rights, contracts, and fair exchange. Apart from the occasional anarcho-capitalist, all libertarians agree that enforcing these rules is one of the most basic functions of government. With these standards for economic behavior in place, individuals can create wealth and pursue their own interests with little or no additional assistance from the state. Likewise, formal and informal standards and sanctions create the context in which couples can create marriage with minimal assistance from the state….

Some libertarians seem to believe that marriage is a special case of free association of individuals. I say the details of this particular form of free association are so distinctive as to make marriage a unique social institution that deserves to be defended on its own terms and not as a special case of something else.

One side in this dispute is mistaken. There is enormous room for debate, but there ultimately is no room for compromise…. We will be happier if we try to discover the truth and accommodate ourselves to it, rather than try to recreate the world according to our wishes….

Being free does not demand that everyone act impulsively rather than deliberately. Libertarian freedom is the modest demand to be left alone by the coercive apparatus of the government. Economic liberty, and libertarian freedom more broadly, is certainly consistent with living with a great many informal social and cultural constraints….

We now live in an intellectual, social, and legal environment in which the laissez-faire idea has been mechanically applied to sexual conduct and married life. But Rousseau-style state-of-nature couplings are inconsistent with a libertarian society of minimal government. In real, actually occurring societies, noncommittal sexual activity results in mothers and children who require massive expenditures and interventions by a powerful government….

When … Friedrich Hayek championed the concept of spontaneous order, he helped people see that explicitly planned orders do not exhaust the types of social orders that emerge from purposeful human behavior. The opposite of a centrally planned economy is not completely unplanned chaos, but rather a spontaneous order that emerges from thousands of private plans interacting with each according to a set of reasonably transparent legal rules and social norms.

Likewise, the opposite of government controlling every detail of every single family’’s life is not a world in which everyone acts according to emotional impulses. The opposite is an order made up of thousands of people controlling themselves for the greater good of the little society of their family and the wider society at large….

Libertarians recognize that a free market needs a culture of law-abidingness, promise-keeping, and respect for contracts. Similarly, a free society needs a culture that supports and sustains marriage as the normative institution for the begetting, bearing, and rearing of children. A culture full of people who violate their contracts at every possible opportunity cannot be held together by legal institutions, as the experience of post-communist Russia plainly shows. Likewise, a society full of people who treat sex as a purely recreational activity, a child as a consumer good and marriage as a glorified roommate relationship will not be able to resist the pressures for a vast social assistance state. The state will irresistibly be drawn into parental quarrels and into providing a variety of services for the well-being of the children….

The libertarian preference for nongovernmental provision of care for dependents is based upon the realization that people take better care of those they know and love than of complete strangers. It is no secret that people take better care of their own stuff than of other people’s. Economists conclude that private property will produce better results than collectivization schemes. But a libertarian preference for stable married-couple families is built upon more than a simple analogy with private property. The ordinary rhythm of the family creates a cycle of dependence and independence that any sensible social order ought to harness rather than resist.

We are all born as helpless infants, in need of constant care. But we are not born alone. If we are lucky enough to be born into a family that includes an adult married couple, they sustain us through our years of dependence. They do not get paid for the work they do: They do it because they love us. Their love for us keeps them motivated to carry on even when we are undeserving, ungrateful, snot-nosed brats. Their love for each other keeps them working together as a team with whatever division of labor works for them.

As we become old enough to be independent, we become attracted to other people. Our bodies practically scream at us to reproduce and do for our children what our parents did for us. In the meantime, our parents are growing older. When we are at the peak of our strength, stamina, and earning power, we make provision to help those who helped us in our youth.

But for this minimal government approach to work, there has to be a family in the first place. The family must sustain itself over the course of the life cycle of its members. If too many members spin off into complete isolation, if too many members are unwilling to cooperate with others, the family will not be able to support itself. A woman trying to raise children without their father is unlikely to contribute much to the care of her parents. In fact, unmarried parents are more likely to need help from their parents than to provide it….

Marriage is the socially preferred institution for sexual activity and childrearing in every known human society. The modern claim that there need not be and should not be any social or legal preference among sexual or childrearing contexts is, by definition, the abolition of marriage as an institution. This will be a disaster for the cause of limited government. Disputes that could be settled by custom will have to be settled in court. Support that could be provided by a stable family must be provided by taxpayers. Standards of good conduct that could be enforced informally must be enforced by law….

The advocates of the deconstruction of marriage into a series of temporary couplings with unspecified numbers and genders of people have used the language of choice and individual rights to advance their cause. This rhetoric has a powerful hold over the American mind. It is doubtful that the deconstruction of the family could have proceeded as far as it has without the use of this language of personal freedom.

But this rhetoric is deceptive. It is simply not possible to have a minimum government in a society with no social or legal norms about family structure, sexual behavior, and childrearing. The state will have to provide support for people with loose or nonexistent ties to their families. The state will have to sanction truly destructive behavior, as always. But destructive behavior will be more common because the culture of impartiality destroys the informal system of enforcing social norms.

It is high time libertarians object when their rhetoric is hijacked by the advocates of big government. Fairness and freedom do not demand sexual and parental license. Minimum-government libertarianism needs a robust set of social institutions. If marriage isn’t a necessary social institution, then nothing is. And if there are no necessary social institutions, then the individual truly will be left to face the state alone. A free society needs marriage. (“Marriage and the limits of contract: A libertarian case,” Policy Review, No. 130)

It is clear that a free society needs traditional, heterosexual marriage, which — as Morse explains — is a primary civilizing force. As if in answer to that truth, the proponents of same-sex “marriage” aver that its recognition by the state will not undermine the societal benefits of traditional marriage. They aver, rather, that it will extend those benefits to encompass those homosexuals who choose “marriage,” and their biological or adopted children.

SAME-SEX “MARRIAGE” IS A BLOW TO LIBERTY

Is there really a “win-win” argument for same-sex “marriage”? The answer, in a word,  is “no.”  The recognition of homosexual “marriage” by the state — though innocuous to many, and an article of faith among most libertarians and liberals — is another step down the slippery slope of societal disintegration. The disintegration began in earnest in the 1930s, when Americans began to place their trust in chimerical, one-size-fits-all “solutions” offered by power-hungry, economically illiterate politicians and their “intellectual” enablers and apologists. In this instance, the state will recognize homosexual “marriage,” then bestow equal  benefits on homosexual “partners,”  and then require private entities (businesses, churches, etc.) to grant equal benefits to homosexual “partnerships.” Individuals and businesses who demur will be brought to heel through the use of affirmative action and hate-crime legislation to penalize those who dare to speak against homosexual “marriage,” the privileges that flow from it, and the economic damage wrought by those privileges.

It should be evident to anyone who has watched American politics that even-handedness is not a matter of observing constitutional limits on government’s reach, regardless of who asks for an exception; it is, rather, a matter of expanding the privileges bestowed by government so that no one is excluded. It follows that the recognition and punitive enforcement of same-sex “marriage” would be followed by the recognition and bestowal of benefits on other arrangements, including transient “partnerships” of convenience. And that surely will weaken heterosexual marriage, which is the axis around which the family revolves. The state will be saying, in effect, “Anything goes. Do your thing. The courts, the welfare system, and the taxpayer — above all — will pick up the pieces.” And so it will go.

Almost six years ago, I constructed following parable (here), which builds on a post by Maggie Gallagher (part of a series at The Volokh Conspiracy on the subject of same-sex marriage):

Imagine a society that depends on the camel (the family, in this analogy) for transportation across a dangerous desert and into an oasis of civility. A camel that is operated by a man and a woman — joined contractually to do their best to steer the camel from danger — is most likely to arrive at its destination safely because the man and woman have complementary skills, and because they (and their offspring, to break the analogy for a moment) are bonded in an irreplicable biological symbiosis. A camel that is operated by either a man or a woman alone is next most likely to arrive at its destination safely because a sole operator, knowing that he or she lacks certain skills, is at least likely to try to compensate for that lack. A camel that is operated by two persons of the same sex is least likely to arrive at its destination safely because: (1) the operators’ bonding can never be as complete as that of a man-woman team and (2) the operators deliberately choose to omit half the skills required for the job.

Those differences might have only a marginal effect on the overall success of camel-driving operations if the state were not involved in licensing and supporting camel drivers. But the state is involved in licensing and supporting camel drivers, and it has done poorly by the camel in the process. The state began many years ago to encourage solo camel driving by enabling man-woman teams to break their contracts at will instead of trying to work out their differences. (The lesson: When the state sends signals about private arrangements, private arrangements tend to align themselves with the signals being sent by the state.) The state later began to encourage yet more solo camel driving by subsidizing women for driving solo (for raising children out of wedlock, that is) and fostering the dereliction of camel-driving duty in the name of “equality” (as if camel driving were a lesser occupation than, say, camel trading). Now the state is beginning to encourage the formation of man-man and woman-woman camel-driving teams. Given the state’s record in such matters, the predictable outcomes of that development are these:

  • An increasing proportion of camels will be driven by same-sex teams, thus decreasing the likelihood that camels will arrive safely at the oasis of civility.
  • A decreasing proportion of men and women will feel the need to form opposite-sex camel-driving teams, as they see that the state (having usurped society’s role in legitimating and supporting camel driving teams) values such teams less and less, thus even further decreasing the likelihood that camels will arrive safely at the oasis of civility.

Given the signals being sent by the state, the rate of formation of traditional, heterosexual marriages will continue to decline. (According to the Census Bureau, the percentage of adult males who are married dropped steadily from 71.1 percent in the 1960 census to 58.6 percent in the 2000 census; for females, the percentage dropped from 67.4 to 54.6. (The latest available figures, for 2009, show no significant change since 2000.) About half of each drop is explained by a rise in the percentage of adults who never marry, the other half by a rise in the percentage of divorced adults. Those statistics are what one should expect when the state signals — as it began to do increasingly after 1960 — that traditional marriage is no special thing by making it easier for couples to divorce, by subsidizing single mothers, and by encouraging women to work outside the home.

The well-known effects of such policies include higher rates of crime and lower levels of educational and economic achievement. (See this and this, for example.) Same-sex marriage would multiply these effects for the sake of mollifying a small minority of the populace.

“EQUAL PROTECTION OF THE LAWS” DOES NOT DICTATE SAME-SEX “MARRIAGE”

When all else fails, special-pleaders claim that to deprive a particular class of persons of a particular right is to deprive them of the “equal protection of the laws,” as guaranteed by the Fourteenth Amendment. The current, perverted interpretation of Equal Protection — as applied by the proponents of same-sex “marriage” — leads to this:  Despite the fact that marriage is good for society and should not be undermined, Equal Protection (in the perverse view) requires that marriage be undermined by redefining it. The law, in other words, cannot discriminate among individuals if there are objections by (or on the part of) those who are discriminated against. The reasonableness of the discrimination is of no account. Thus, in the not-so-far-fetched-extreme, criminals may not be discriminated against by putting them into prisons, but must enjoy the same amenities as law-abiding citizens.

Consider the infamous Proposition 8 case, Perry v. Schwarzenegger, which was decided last year by U.S. District Judge Vaughn Walker (who has since retired and admitted his special interest in the case, as a homosexual in a “committed” relationship). Judge Walker addresses equal protection thusly:

The Equal Protection Clause of the Fourteenth Amendment provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.”…

Proposition 8 targets gays and lesbians in a manner specific to their sexual orientation and, because of their relationship to one another, Proposition 8 targets them specifically due to sex. Having considered the evidence, the relationship between sex and sexual orientation and the fact that Proposition 8 eliminates a right only a gay man or a lesbian would exercise, the court determines that plaintiffs’ equal protection claim is based on sexual orientation, but this claim is equivalent to a claim of discrimination based on sex.

The circularity of Judge Walker’s reasoning with respect to equal protection begins much earlier in his decision, where he writes that

The right to marry has been historically and remains the right to choose a spouse and, with mutual consent, join together and form a household. Race and gender restrictions shaped marriage during eras of race and gender inequality, but such restrictions were never part of the historical core of the institution of marriage. Today, gender is not relevant to the state in determining spouses’ obligations to each other and to their dependents. Relative gender composition aside, same-sex couples are situated identically to opposite-sex couples in terms of their ability to perform the rights and obligations of marriage under California law. Gender no longer forms an essential part of marriage; marriage under law is a union of equals.

But the right to marry, historically, has been the right to choose a spouse of the opposite sex, not merely to choose a spouse. Judge Walker even acknowledges that fact, inadvertently, when he puts aside “relative gender composition,” as if it were a mere trifle and not central to a social tradition that dates back millennia and should not be swept aside casually by a judge because he finds it “irrational,” on the basis of spurious social science. Walker then says that “gender is not relevant,” thus circularly assuming that which is to be proved. As if in support of that assertion he asserts, laughably, that “gender restrictions … were never part of the historical core of the institution of marriage.”

In sum, Judge Walker approaches the constitutional matter of equal protection by assuming that gays have the right to marry. Given that assumption, it is easy to assert that Proposition 8 amounts to a denial of equal protection for gays who seek to marry.

THE STATE SHOULD PROTECT MARRIAGE, NOT DESTROY IT

Although it is true that heterosexual unions have their problems, those problems have been made worse by the intercession of the state. And if the state legitimates same-sex “marriage” civil society will suffer a devastating injury.

Near-sighted, special-pleading proponents of same-sex “marriage,” even if faced with its anti-libertarian ramifications, will say that it is only “fair” to legalize it, and discriminatory or bigoted to deny it. These are the proper response to such playground taunts:

  • Marriage was neither created nor sustained for negative reasons. The preservation of a time-honored, beneficial, voluntary, social institution is no more discriminatory or bigoted than the preservation of, say, an honorary society that is open only to persons who excel in particular ways.
  • The legalization of homosexual “marriage” is unfair to the vast majority of Americans whose well-being depends on the proper functioning of traditional marriage, which is a bulwark of civil society.

Therefore, given that the state is deeply and irretrievably involved in marriage, I reject the unrealistic libertarian nostrum that the state ought not to have anything to do with marriage. The reality of the state’s continuing involvement with marriage leads me to embrace the consequentialist position that the state ought to preserve it by refusing to change its time-honored character as the union of one man and one woman.

The alternative is to advance further down the slippery slope toward societal disintegration and into the morass of ills which accompany that disintegration. (We have seen enough societal disintegration and costly consequences since the advent of the welfare state to know that the two go hand in hand.)

Faced with a choice between libertarian shibboleth and libertarian substance, I have chosen substance. I now say: Ban homosexual marriage and avoid another step down the slippery slope toward incivility and bigger government.

Related posts:
I Missed This One
A Century of Progress?
The Marriage Contract
Feminist Balderdash
Libertarianism, Marriage, and the True Meaning of Family Values
Consider the Children
Marriage and Children
Same-Sex Marriage
“Equal Protection” and Homosexual Marriage
Parenting, Religion, Culture, and Liberty
“Family Values,” Liberty, and the State
On Liberty
Civil Society and Homosexual “Marriage”
Perry v. Schwarzenegger, Due Process, and Equal Protection
Rationalism, Social Norms, and Same-Sex “Marriage”
Pseudo-Libertarian Sophistry vs. True Libertarianism
Libertarian Conservative or Conservative Libertarian?
Liberty, Equality, Fraternity: Part I
Bounded Liberty: A Thought Experiment
More Pseudo-Libertarianism
The Meaning of Liberty
Positive Liberty vs. Liberty

__________
1. I enclose “libertarians” in quotation marks because many (most?) self-described libertarians espouse policies that are, in fact, anti-libertarian. The legalization of same-sex “marriage” is one such policy, as I explain in this post; abortion is another salient one; others include a weak national defense, borders that are open to prospective supporters and beneficiaries of the welfare state, reflexive softness toward criminals, and a willingness to sacrifice the property rights of others to prove their own bona fides in matters of race. For more, see these posts:
On Liberty
Line-Drawing and Liberty
Pseudo-Libertarian Sophistry vs. True Libertarianism

Libertarian Conservative or Conservative Libertarian?
Liberty, Equality, Fraternity: Part I
Bounded Liberty: A Thought Experiment
More Pseudo-Libertarianism
More about Conservative Governance
The Meaning of Liberty
Positive Liberty vs. Liberty
On Self-Ownership and Desert

2. DOMA, as explained here, seems to have two legal effects:

DOMA Section 2 … relieves states of a constitutional obligation to enforce judicial custody, alimony or other orders made in other states that involve recognition of same-sex marriages…. It is unclear … whether states already had the power to refuse recognition in these cases before the enactment of DOMA, and whether the U.S. Constitution allows Congress to modify such state authority.

DOMA’s Section 3 prevents the federal government from recognizing the validity of same-sex marriages….

Later:

Section 2 of DOMA explicitly addresses the constitutional requirement expressed in the Full Faith and Credit Clause in Article IV Section 1 of the United States Constitution, quoting its language directly. That clause establishes that the states have certain reciprocal obligations to one another, specifically to recognize each other’s “public Acts, Records, and judicial Proceedings.” That same section of the Constitution gives Congress the authority to legislate on the question of those obligations. Section 2 of DOMA excludes same-sex marriages from the state “acts” that any other state needs to recognize.

[Regarding] Section 3 of DOMA…. On February 23, 2011, Attorney General Eric Holder and President Obama announced their conclusion that “a more heightened standard of scrutiny” is necessary for sexuality-based classifications and consequently… DOMA Section 3 is unconstitutional.

In other words, a constitutional act — which legitimately allows the citizens of the various States to define marriage for themselves — is cast aside precisely because the citizens of some States might reject same-sex “marriage.” Obama and Holder, in other words, have taken it upon themselves to grant same-sex “marriage” the same status as traditional marriage. Their “reasoning,” I suspect, flows from the circular application of the “equal protection” clause of the Fourteenth Amendment that I discuss here.

Rationalism, Social Norms, and Same-Sex “Marriage”

Judge Vaughn Walker’s recent decision in Perry v. Schwarnenegger, which manufactures a constitutional right to same-sex marriage, smacks of Rationalism. Judge Walker distorts and sweeps aside millennia of history when he writes:

The right to marry has been historically and remains the right to choose a spouse and, with mutual consent, join together and form a household. Race and gender restrictions shaped marriage during eras of race and gender inequality, but such restrictions were never part of the historical core of the institution of marriage. Today, gender is not relevant to the state in determining spouses’ obligations to each other and to their dependents. Relative gender composition aside, same-sex couples are situated identically to opposite-sex couples in terms of their ability to perform the rights and obligations of marriage under California law. Gender no longer forms an essential part of marriage; marriage under law is a union of equals.

Judge Walker thereby secures his place in the Rationalist tradition. A Rationalist, as Michael Oakeshott explains,

stands … for independence of mind on all occasions, for thought free from obligations to any authority save the authority of ‘reason’. His circumstances in the modern world have made him contentious; he is the enemy of authority, of prejudice, of the merely traditional, customary or habitual. His mental attitude is at once sceptical and optimistic: sceptical, because there is no opinion, no habit, no belief, nothing so firmly rooted or so widely held that he hesitates to question it and to judge it by what he calls his ‘reason’; optimistic, because the Rationalist never doubts the power of his ‘reason … to determine the worth of a thing, the truth of an opinion or the propriety of an action. Moreover, he is fortified by a belief in a ‘reason’ common to all mankind, a common power of rational consideration…. But besides this, which gives the Rationalist a touch of intellectual equalitarianism, he is something also of an individualist, finding it difficult to believe that anyone who can think honestly and clearly will think differently from himself….

…And having cut himself off from the traditional knowledge of his society, and denied the value of any education more extensive than a training in a technique of analysis, he is apt to attribute to mankind a necessary inexperience in all the critical moments of life, and if he were more self-critical he might begin to wonder how the race had ever succeeded in surviving. (“Rationalism in Politics,” pp. 5-7, as republished in Rationalism in Politics and Other Essays)

At the heart of Rationalism is the view that “a problem” can be analyzed and “solved” as if it were separate and apart from the fabric of life.  On this point, I turn to John Kekes:

Traditions do not stand alone: they overlap, and the problems of one are often resolved in terms of another. Most traditions have legal, moral, political, aesthetic, stylistic, managerial, and multitude of other aspects. Furthermore, people participating in a tradition bring with them beliefs, values, and practices from other traditions in which they also participate. Changes in one tradition, therefore, are likely to produce changes in others; they are like waves that reverberate throughout the other traditions of a society. (“The Idea of Conservatism“)

Edward Feser puts it this way:

Tradition, being nothing other than the distillation of centuries of human experience, itself provides the surest guide to determining the most rational course of action. Far from being opposed to reason, reason is inseparable from tradition, and blind without it. The so-called enlightened mind thrusts tradition aside, hoping to find something more solid on which to make its stand, but there is nothing else, no alternative to the hard earth of human experience, and the enlightened thinker soon finds himself in mid-air…. But then, was it ever truly a love of reason that was in the driver’s seat in the first place? Or was it, rather, a hatred of tradition? Might the latter have been the cause of the former, rather than, as the enlightened pose would have it, the other way around?) (“Hayek and Tradition“)

Same-sex marriage will have consequences that most libertarians and “liberals” are unwilling to consider. Although it is true that traditional, heterosexual unions have their problems, those problems have been made worse, not better, by the intercession of the state. (The loosening of divorce laws, for example, signaled that marriage was to be taken less seriously, and so it has been.) Nevertheless, the state — pursuant to Judge Walker’s decision — may create new problems for society by legitimating same-sex marriage, thus signaling that traditional marriage is just another contractual arrangement in which any combination of persons may participate.

Heterosexual marriage — as Jennifer Roback Morse explains — is a primary and irreplicable civilizing force. The recognition of homosexual marriage by the state will undermine that civilizing force. The state will be saying, in effect, “Anything goes. Do your thing. The courts, the welfare system, and the taxpayer — above all — will “pick up the pieces.” And so it will go.

In Morse’s words:

The new idea about marriage claims that no structure should be privileged over any other. The supposedly libertarian subtext of this idea is that people should be as free as possible to make their personal choices. But the very nonlibertarian consequence of this new idea is that it creates a culture that obliterates the informal methods of enforcement. Parents can’t raise their eyebrows and expect children to conform to the socially accepted norms of behavior, because there are no socially accepted norms of behavior. Raised eyebrows and dirty looks no longer operate as sanctions on behavior slightly or even grossly outside the norm. The modern culture of sexual and parental tolerance ruthlessly enforces a code of silence, banishing anything remotely critical of personal choice. A parent, or even a peer, who tries to tell a young person that he or she is about to do something incredibly stupid runs into the brick wall of the non-judgmental social norm. (“Marriage and the Limits of Contract“)

The state’s signals are drowning out the signals that used to be transmitted primarily by voluntary social institutions: family, friendship, community, church, and club. Accordingly, I do not find it a coincidence that loud, loutish, crude, inconsiderate, rude, and foul behaviors have become increasingly prominent features of “social” life in America. Such behaviors have risen in parallel with the retreat of most authority figures in the face of organized violence by “protestors” and looters; with the rise of political correctness; with the perpetuation of the New Deal and its successor, the Great Society; with the erosion of swift and sure justice in favor of “rehabilitation” and “respect for life” (but not for potential victims of crime); and with the legal enshrinement of infanticide and buggery as acceptable (and even desirable) practices.

Thomas Sowell puts it this way:

One of the things intellectuals [his Rationalists] have been doing for a long time is loosening the bonds that hold a society together. They have sought to replace the groups into which people have sorted themselves with groupings created and imposed by the intelligentsia. Ties of family, religion, and patriotism, for example, have long been treated as suspect or detrimental by the intelligentsia, and new ties that intellectuals have created, such as class — and more recently “gender” — have been projected as either more real or more important….

Under the influence of the intelligentsia, we have become a society that rewards people with admiration for violating its own norms and for fragmenting that society into jarring segments. In addition to explicit denigrations of their own society for its history or current shortcomings, intellectuals often set up standards for their society which no society has ever met or is likely to meet.

Calling those standards “social justice” enables intellectuals to engage in endless complaints about the particular ways in which society fails to meet their arbitrary criteria, along with a parade of groups entitled to a sense of grievance, exemplified in the “race, class and gender” formula…. (Intellectuals and Society, pp. 303, 305)

And so it will go –  barring a sharp, conclusive reversal of Judge Walker and the movement he champions.

Related posts:
“Equal Protection” and Homosexual Marriage
Social Norms and Liberty
The Fallacy of Particularism
History Lessons
On Liberty
Civil Society and Homosexual “Marriage”
Perry v. Schwarzenegger, Due Process, and Equal Protection

The Death of the Democrat Party?

Democracy is incompatible with liberty. But democracy is nevertheless considered a “good thing.” To call a political party “Democratic” imparts to that party an unwarranted veneer of beneficence. I refuse to lend this blog to that bit of moral confusion. Thus, on these pages, the “Democratic Party” is and always will be the “Democrat Party. End of mini-rant.

“Liberalism,” “progressivism,” and their variants are incompatible with liberty and progress. That is why I always enclose those terms in quotation marks.

If you see opposition to same-sex marriage as anti-libertarian, I suggest that you re-think your position, beginning with this.

James Taranto, of WSJ‘s Opinion Journal, opines:

If the Ninth Circuit upholds Walker’s decision [for same-sex marriage, in Perry v. Schwarzenegger], the Supreme Court would almost certainly agree to hear an appeal….

…When the Supreme Court takes up Perry v. Schwarzenegger … the justices will rule 5-4, in a decision written by Justice Kennedy, that there is a constitutional right to same-sex marriage.

This accepts the conventional assumption that the court’s “liberal” and “conservative” wings will split predictably, 4-4. Yet while Kennedy cannot be pigeonholed in terms of “ideology,” on this specific topic, he has been consistent in taking a very broad view of the rights of homosexuals. He not only voted with the majority but wrote the majority opinions in two crucial cases: Romer v. Evans (1996) and Lawrence v. Texas (2003).

Romer struck down an amendment to the Colorado Constitution that nullified state or local ordinances barring discrimination on the basis of “homosexual, lesbian or bisexual orientation, conduct, practices or relationships.” This provision, adopted by ballot initiative, violated the Equal Protection Clause of the 14th Amendment, Justice Kennedy wrote for the court….

In Lawrence, the court overturned a 1986 ruling and held that state laws criminalizing consensual homosexual sodomy violated the constitutional right of privacy….

Proposition 8 was adopted in “liberal” California by a margin of 52-48.  This is the same California that has preferred the Democrat candidate over his Republican opponent in the last five presidential elections, culminating in an Obama-slide of 61 percent vs. 39 percent for McCain and assorted wing-nuts.

Clearly, same-sex marriage is not beloved by all Democrats, or even an overwhelming majority of them. Voters in 31 States have blocked same-sex marriage in their States by rejecting proposals to allow it or (in most cases) approving constitutional amendments banning it. Only five States and the District of Columbia recognizes same-sex marriage. Needless to say, the deeds were done in those six jurisdictions by legislative or judicial fiat, and not by consulting voters about one of the rare issues that merits “democratic” consultation because it impinges directly on deep-rooted social norms.

If/when Judge Vaughn Walker’s judicial abomination is upheld by Justice Kennedy, voters will know where the blame lies: with the left wing of the Democrat Party and the gay-rights lobby, which is one of the Democrat Party’s favored constituencies. The resulting backlash among not-so-leftish Democrats would spell electoral disaster for the Democrat Party. Party leaders would then have two options:

  • Overtly move the party back from the extreme edge of American political opinion, in the hope that enough voters are taken in by such a cynical ploy to avert long-term disaster for the party.
  • Remain on the left edge of American political opinion, in the hope and belief that voters will (before too long) slide toward that edge.

My money is on the second option, because the leaders of the Democrat Party are deeply committed, in thought and word, to the “progressive” agenda: the cultivation of radical ideas and constituencies. (Why? Read this exquisite rant by Tom Smith.) And that, in the face of growing discontent about the power and cost of government, is a recipe for political suicide.

One can only hope.

Related posts:
Civil Society and Homosexual “Marriage”
Perry v. Schwarzenegger, Due Process, and Equal Protection

Perry v. Schwarzenegger, Due Process, and Equal Protection

The decision of federal district judge Vaughn Walker in the case of Perry v. Schwarzenegger finds California’s Proposition 8 unconstitutional. Judge Walker’s decision is notable for two things:

  • It affirms substantive due process.
  • It stands in the tradition of circular reasoning with respect to equal protection.

With respect to due process, Judge Walker says:

The Due Process Clause provides that no “State [shall] deprive any person of life, liberty, or property, without due process of law.” … Due process protects individuals against arbitrary governmental intrusion into life, liberty or property….

The freedom to marry is recognized as a fundamental right protected by the Due Process Clause….

To determine whether a right is fundamental under the Due Process Clause, the court inquires into whether the right is rooted “in our Nation’s history, legal traditions, and practices.”

Judge Walker thereby adopts the logic of the U.S. Supreme Court in Lochner v. New York (1905), a case that upheld the right of private parties to enter into employment agreements that run contrary to the labor laws of a State. Lochner, in a roundabout way, upheld liberty of contract, which is a right specifically recognized in the Constitution of the United States (Article I, Section 10).

Lochner epitomizes substantive due process, a juridical concept that has been in bad odor for decades, but which ought not to be. The essence of Lochner — and substantive due process — is exactly as stated by Judge Walker: “Due process protects individuals against arbitrary governmental intrusion into life, liberty or property.” (For more about Lochner, see my post, “Substantive Due Process, Liberty of Contract, and the States’ Police Power.”)

Judge Walker goes on to address equal protection:

The Equal Protection Clause of the Fourteenth Amendment provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.”…

Proposition 8 targets gays and lesbians in a manner specific to their sexual orientation and, because of their relationship to one another, Proposition 8 targets them specifically due to sex. Having considered the evidence, the relationship between sex and sexual orientation and the fact that Proposition 8 eliminates a right only a gay man or a lesbian would exercise, the court determines that plaintiffs’ equal protection claim is based on sexual orientation, but this claim is equivalent to a claim of discrimination based on sex.

The circularity of Judge Walker’s reasoning with respect to equal protection begins much earlier in his decision, where he writes that

The right to marry has been historically and remains the right to choose a spouse and, with mutual consent, join together and form a household. Race and gender restrictions shaped marriage during eras of race and gender inequality, but such restrictions were never part of the historical core of the institution of marriage. Today, gender is not relevant to the state in determining spouses’ obligations to each other and to their dependents. Relative gender composition aside, same-sex couples are situated identically to opposite-sex couples in terms of their ability to perform the rights and obligations of marriage under California law. Gender no longer forms an essential part of marriage; marriage under law is a union of equals.

But the right to marry, historically, has been the right to choose a spouse of the opposite sex, not merely to choose a spouse. Judge Walker even acknowledges that fact, inadvertently, when he puts aside “relative gender composition,” as if it were a mere trifle and not central to a social tradition that dates back millennia and should not be swept aside casually by a judge because he finds it “irrational,” on the basis of spurious social science. Walker then says that “gender is not relevant,” thus circularly assuming that which is to be proved. As if in support of that assertion he asserts, laughably, that “gender restrictions … were never part of the historical core of the institution of marriage.”

In sum, Judge Walker approaches the constitutional matter of equal protection by assuming that gays have the right to marry. Given that assumption, it is easy to assert that Proposition 8 amounts to a denial of equal protection for gays who seek to marry. (For more about the perversion of the Equal Protection Clause through circular reasoning, see my post, “‘Equal Protection” and Homosexual Marriage.”)