The California Supreme Court is now hearing arguments on the state’s Proposition 8, which forbids same-sex marriages. Rather than rail, one more time, at the turpitude of California or the perversity of homosexuals and liberals, I would like to look very briefly at some of the more prominent arguments being used. This is an addendum or, because of the timing, an anticipation of a Chronicles piece that will be posted in a week or so.
The opposition to homosexual marriage generally relies on religious arguments drawn from the Scriptures or from the traditions of the various churches and sects that drummed up money and votes against same-sex marriage. I hate to pour cold water on good intentions, but religious arguments are of no great validity in a country without a national religion. Many Protestant sects–Obama’s pseudo-Christian United Church of “Christ,” for example–endorse Gay Marriage, and of the groups that oppose it, e.g. Mormons and Catholics, they agree on so little else, beginning with every item of the Nicene Creed, their united opposition amounts to nothing more significant than a single-issue tactical alliance whose members are united only in what they reject and not what they affirm.
Such incoherence, I would suggest, not only cannot be made the basis for a practical long-range strategy but also confuses the simple and weakens their convictions. If Christians can join forces with Mormons, why not Muslims (as some self-declared conservatives do)? Why not Voodoo practitioners or Moloch-worshippers, who want more live babies to sacrifice in their abominable ceremonies. In some parts of the South, the Baptists and bootleggers worked together to maintain prohibition, and it is hard to see how conscientious Catholics can join forces, especially on a marital issue, with a polygamous sect that has only temporarily suspended the right to take multiple wives. If we are once clear that America is not a Christian nation, we can give up futile crusades based on a fantasy.
Catholics will retort that this is a natural law question, but this, again, is a futile argument in a country where 1) there is no widespread acceptance of natural law theory, and 2) even advocates of natural law disagree. Such arguments may well be binding on our conscience–though hardly as much as the universal Christian tradition against homosexuality–but they can play no effective part on the political stage. If natural law is what Robert George and George Weigel say it is, then it is as often a tool of leftist revolution against Christendom as it is a weapon of defense.
The question, as both sides really know, is a political one. But what political principles are at stake? None, it would seem. Each side is willing to appeal alternately to the voters, by way of referendum, or to the Courts, in appeals to the principles of equality and human rights, or to the direct action, in stirring up the less stable elements in public demonstrations.
This time round, the issue is fairly narrowly drawn. Supporters of Proposition 8, including former special prosecutor Ken Star, who has presented a brief on their behalf, argue that the people have spoken through a referendum, and that in appealing to the Courts, Gay Marriage advocates are ignoring the will of the people.
Leading opponents, like Gavin Newsom, the San Francisco mayor who gained notoriety for “marrying” homosexual couple, argue that the principle of equality should prevent a whimsical majority from denying fundamental rights rooted in the principle of equality.
Now, I freely admit that both sides are misrepresenting themselves. If the shoe were on the other foot, Newsom would be arguing for the right of the majority to legalize Gay Marriage and Star would be appealing to the wisdom of the Court to prevent this exercise of mob law. But let us look only at the merits of the respective arguments.
If we set aside the obscenity of his point of view and the absurdity of his appeal to speculative principles of equality and human rights, Mayor Newsom is clearly correct. Fundamental questions of right should not and, in a moral sense, cannot be solved through elections in which ignorant and unreflective people, stirred by media campaigns, vent their opinions at the ballot box. It must be admitted that the vote on Prop 8 is as close to democracy as anything we are likely to witness in the United States. With a 79% turnout of registered voters, roughly 7 million voted for and 6.4 million against. Of course, the State’s population is about 34 million, which makes the turnout about 40% of the population, and the victorious majority only about 20% of the population. I know there are bigots who will argue that children, lunatics in asylums, and criminals doing life sentences should not be able to vote, but the same arguments were once used to deny blacks and women the right to vote.
This is not a joke. Many (most?) opponents of same-sex marriage agree with Mike Huckabee that marriage rights are universal and rooted in the principles of equality and human rights, which is why they can never win a rational argument with an intelligent leftist. [On Huckabee’s pathetic showing on the Daily Show, read my current “Perspective” in Chronicles.]
If we generalize Mayor Newsom’s argument, I think we can agree. Should basic moral principles be decided either a democratic political process, whether the decision is made by a direct referendum or by democratically elected representatives or judges or by judges appointed by democratically elected public officials? Let me just draw up a random list of moral violations that have either been decriminalized or trivialized by legislators and judges–sodomy, rape, public use of profanity–or new moral and legal rights that have been discovered–women’s, children’s and animal’s rights, the right to rent a room from someone who does not like you because of your ethnicity or sexual misconduct….
The list of both sorts of outrages would be endless. If a monarch had done these things, he would have been proclaimed a tyrant. But when 20% or the population or less–or officials whose authority rests on these small percentages–overturns a longstanding custom, the usual response is to seek redress through the political processes that are responsible for the tyranny.
Marriage, until very recently, was never a mere contract between individuals or a government-created institution. Legitimate societies have always been interested in regulating inheritance laws, discouraging a decline in the reproduction of citizens, and in preventing dilution of the citizen ethos by marriage with non-citizens, but government has not, typically, defined marriage and the family, much less redefined them. The exceptions are the Jacobins of the French Revolution and the ideological states of the past 100 years, principally Marxist and democratist states.
Who made Gavin Newsom or Ken Star or Mike Huckabee, Barney Frank or James Dobson prophets or philosopher-kings that they should presume to define marriage? We have suffered enough from venal and ignorant politicians who think they are economists or patriarchs. Until people who regard themselves as conservatives are willing to find some moral and spiritual solvents to set them free from the tarbabies of political parties and ideologies, they will never even begin to resist the tyranny that Americans accept so willingly.
It is not just, as I have so often argued in the past, that politicians cannot be trusted to solve moral problems, but that there is a realm of human moral responsibility into which legislators and judges should either not enter or, if they do, their actions should be limited to preserving an ancient tradition. Democracy, in declaring that every moral issue can be determined by majoritarian politics, is a corrosive and revolutionary force that first destroys the social, then the cultural, and now the moral order. It is on the verge of attacking the natural order: Do not be surprised if Congress, while outlawing pet chimpanzees, permits intermarriage among all primates.