This recent New York Times article discusses how important gay marriage has become for conservatives, providing many conservative groups with a new focal point.
Indeed, gay marriage (or the specter of it) is probably a more important issue to conservatives than it is to liberals. For many liberals, the issue is relatively unimportant, compared with, say, war in Iraq, federal judiciary appointments, drilling in Alaska, and deprivation of civil liberties under the Patriot Act. Meanwhile, for many conservatives, gay marriage seems to be the most important issue. And that difference in relative importance influences how politicians approach the question.
Besides the various reasons given in previous threads as to why this is such an important issue to conservatives, the sheer audacity of the homosexual rights crowd, and the relentless promotion of their agenda places it on the front burner for many. For instance as reported here:
http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2004/02/11/SAMESEX.TMP
“San Francisco Mayor Gavin Newsom put California right in the middle of the fight over same-sex marriage Tuesday, saying he wants the city to try to find a way to issue marriage licenses to gay and lesbian couples in defiance of state law.”
Remember just a short time ago voters in California made clear that SSM was not wanted. Liberals will not give up on this and in their mind the rule of law means nothing in their mad pursuit to destroy the moral fabric of our nation. It makes me sick.
Those damnable liberals!
Brent,
Be careful about beating pro-SSMers with the rule of law stick. Some anti-SSMers have suggested that Mitt Romney should consider defying state constitutional law in Massachusetts. See, e.g., http://www.wewintheylose.blogspot.com/
I meant to end that with a ;)
Greg, if you read what I wrote, and if I had more time I would have further clarified this point at We Win, They Lose, I do not suggest that Mitt Romney cast aside the rule of law. In fact, I suggested that I believe he has two proper courses of action, one being that he determine whether upholding the rule of law requires that he defy the SJC’s arguably unconstitutional decision, or that he resign rather than put his name on SSM legislation.
Brent might not be advocating it…but I am. Open defiance works fine for me…esp. in a state that is so familiar and comfy with civil disobedience.
In my observation (and this is a subject I have discussed a little in my writing) it is a common phenomenon in legal argument to play a little fast and loose with terms like “the rule of law.”
See Kaimipono David Wenger and David A. Hoffman, Nullificatory Juries, __ Wisc. L. Rev. __ (forthcoming 2004):
“The question of whether and how jury nullification actually offends the rule of law is certainly unsettled. Scholars have had considerable difficulty in translating the vague rule-of-law ideal into concrete legal instructions. The idealized rule of law has very little normative content; as scholars have noted, it even allows for many kinds of tyranny.”
(Draft available at http://papers.ssrn.com/abstract=436643 ).
Mayor Newsom (who, by the way, was the most conservative of all the SF mayoral candidates(!)) would say he is simply proposing defying the unconstitutional state referendum. The way you’re using “rule of law”, it is about as useful as “judicial activism”.
What do you suggest then is a proper definition of rule of law?
Brent, that’s a question that philosophers of law and constitutional scholars have batted around for decades. Here’s a decent attempt at a simple definition: http://legaltheorylexicon.blogspot.com/2004_01_01_legaltheorylexicon_archive.html#107322292941220178
Brent,
There is a basic conception of the rule of law, something I label the idealized rule of law, which is the part that everyone agrees on. The basic rule of law requires that laws be known in advance, applicable to all persons, and reasonably performable. And that’s all.
This idealized rule of law has the benefit of almost universal acceptance. However, it does not contain enough content to give much guidance. In most debates –including this one — it does not give any guidance at all. (There are some regimes that violate even this basic threshold. But differences within the United States, between political parties, between different judges, are not resolvable by recourse to the idealized rule of law).
In contrast to the idealized rule of law, many politicians or advocates create their own versions of the rule of law. These versions may be formalist in nature; they may be economic (rule of law requires rationality) or based on some version of natural law; they may be based on political ideals (rule of law requires majority rule), etc.
Different versions of the rule of law may provide us with normative guidance in different political situations or legal cases. But these versions do not have universal consent, and they are at their core just someone’s political or economic theory dressed up as a rule of law, to try to tap into the powerful rhetoric that comes with the phrase “rule of law” (“how dare you defy the rule of law!”).
Greg,
Thanks for the link, very helpful. (And I think my views more or less agree with Solum’s, which is a good sign).
All,
Lest anyone take my paper too seriously, I should note that Nate critiqued it on his blog, see http://goodoman.blogspot.com/2003_10_05_goodoman_archive.html#106562931182861920 , and my co-author replied, see http://goodoman.blogspot.com/2003_10_12_goodoman_archive.html#106614941604675355
Brent’s point is that the San Francisco mayor chose specifically to ignore state statute when he directed the city clerk to make marriage licenses available to any 2 people who desired one. The mayor didn’t challenge the constitutionality of the statute by filing a lawsuit, like the state representative did, he chose to laugh at the process by doing what he felt was right. There is no way this should be seen as following the rule of law – even using the most vague definition there is.
Many people feel that certain tax laws are unconstitutional. I know I did when I was 16, couldn’t vote, and was still being taxed. Many people feel that certain searches are unconstitutional. But in both cases, if the party doesn’t submit to the law, they are prosecuted. Constitutional challenges have always been limited to the courts — because it is their job to decide. The mayor has overstepped his authority, as a citizen and a mayor. I’d like to see him prosecuted.
And I think it’s such an important issue for conservatives because they’re sick of being run over by the loud, ultra-liberal, minority faction that has eroded our values for years. You could call it the breaking point.
Newsome is already running for re-election and going for some name-recognition. Lots of homosexuals here in San Francisco (and I suppose nationwide) think that this minority of a minority are damaging the “gay community” by radicalizing the marriage issue. Apparently many gays either eschew marriage altogether or realize that any legal rights they need can be drawn up by any lawyer in town and this current bout of gaity is merely being thrust into the straight worlds’ face in order to be flamboyent.
Michelle,
So I assume that you were in favor of sanctions for Roy Moore after he flouted the rule of law?
Kaimi: I think you are exactly right about this. Rule of law is, like majority rule, is something which neither an absolute principle of the American regime nor universally agreed upon except in the abstract. Thus is it almost always invoked ideologically–its typical use systematically masks the presuppositions on which it is based. For conservatism’s sake, conservatives should specify how and why in these cases ‘rule of law’ and ‘prevailing opinion’ should trump this or that judicial decision.
Kaimi,
Sanctions for Moore. Yep.
Jeremy,
What do you have in mind? Are you suggesting some sort of natural law approach that would specify why civil disobedience in some contexts is admirable but despicable in others?
Kaimi,
Yes, indeed I was.
Adam: Yes, some kind of natural law approach, broadly defined, would do the trick here. You could also go to some conservative position which may accept natural law but not make such prominent rhetorical use of natural law. Burke is an example of this position. I don’t have a problem with making rhetorical use of concepts which rightly have a moral power to them, e.g. rule of law, fundamental rights, majority rule, etc. But when we start to make one or two of these into ultimate principles then we are moving into a politics of abstraction which modern conservatism deserves credit for warning us against.
This is my problem with a conservatism (or liberalism, or radicalism, for that matter), of “absolute truth”. Some have denied that there is anything true which could be of use to us on quesions of political right. In a breathless response to these people, many people with whom I otherwise agree have made “truth” the watchword of an abstract political movement in defense of eternal moral realities. Political right is ultimately rooted in what is true; at least this is my conviction. But some due must be given to prevailing ethical sentiment, as well as the patterns of existing institutions. Of course there is still the hard task of figuring out how to bring these things together. But the natural law tradition, rightly understood, does provide a number of good answers to this problem.
While I understand that I am jumping into one of the bigger controvercies in our era, I feel like I should put in my two cents.
To restate the question, why do we turn to the law to resolve our disputes? The answer is that during the American Revolution, our country turned its back on the constitutional tradition in England and turned to the belief in the written Constitution. It was believed, at the time, that some laws were so fundamental that they could not be violated or overturned by simple majorities in the legislatures. Within a short period, this concept was expanded to a point where our fundametal laws were adopted by majorites of the citizenry.
With the belief that some laws were fundamental, the legislatures could not enact statutes that violated the constitution. Without an independent judiciary, which contained the power to declare legislative statutes unconstitutional or unlawful, then the legislature would have the power to usurp fundamental principles at will.
This is not to say that the judiciary in this country has sometimes found creative ways of deciding cases. And, it is a myth to believe that the courts are not policy shapers. However, more judiciaries do not relish the thought of being placed in the role of shaping a political debate. (See Dred Scot v. Stanford and Roe v. Wade as possible exceptions). Instead, the judiciary does its best work long after the elected branches decides their intentions.
However, the crux of the debate of an “active judiciary” is that an active judiciary depends on how you view the issue. To opponents of a decision, an active judiciary finds rights where none existed before. For supporters of the decision, the judicial branch relieved a miscarrage of justice. Also, the concept of judical fiat depends on ones perspective on history. Either Brown v. Board of Education was a correct and long awaited decision, or it was seen at the time as one of the worst cases of judicial activism.
As for my opinion on the topic on hand, it seems that most posters have forgotten the lessons of Loving v. Virginia. It was in that case that it was decided that whites and blacks could marry. For many conservatives concerned with family values, the idea that the “races” in America could marry would destroy the foundations of the country. Instead, the greatness of America has continued. SSM will not cause as much harm to the institution of marriage as Brittney Spears did in 24 hours.
Culture wars have been a fact of life in this country since the second generation of Puritans. The greatness of America is the credo in the Declaration of Independence. The purpose of our civil government (distinct from our religious authorities) is to protect the life, liberty, and pursuit of happiness of all citizens.
I think Tocqueville said that America is great because America is good. America’s greatness is diminished each time we distort its traditions and laws to encourage and embrace immorality. The Declaration of Independence which declared that all men are created equal and endowed by their Creator with inalienable rights cannot be relied upon to justify same-sex marriage. It mocks God to suggest that he would view same-sex marriage as an inalienable right.
Loving v. Virginia keeps being cited as support for the pro-SSM position, but it is not. First of all, sexuality is not the same as race. Second, the Constitution expressly prohibits disparate treatment based on racial classifications (unless of course we are talking about discriminating against whites in public education which will be okay for another 25 years). Thus, the court in Loving was not finding a new right, it was upholding an existing right within the text of the Constitution and within the spirit of the provision at issue.
The Constitution does not grant any special rights to homosexuals. (Don’t bother to cite to Lawrence. I am aware of the decision and it is ridiculous in its reasoning and analysis.) In the not to distant past, legislatures possessed the ability to establish laws based on public morality. No rational justification has been posited as to why they cannot do so any longer. If the legislature of a particular state wants to change marriage laws that is fine. But the judiciary has no right to exercise that authority by intentionally misconstruing state Constitutional law. Our system was designed to protect life, liberty and the pursuit of happiness, but that doesn’t mean a small handful of elitist judges get to determine the what that means for us. Remember, we have three co-equal branches of government. It is a government of the people, by the people and for the people. Let the people decide, not four leftists in black robes in Massachusetts.
Kaimi, Jeremiah, et al: I have to take issue with your glib dismissal of rule of law arguments. I do not take a position here on their use in the SSM debates, however, I don’t think that the Sunstien position that Kaimi takes is correct, namely that the concept of the rule of law is too general to do any real analytic work.
The conditions of legality that Kaimi refers to are those laid out by Lon Fuller in _The Morality of Law_, and I think in that book Fuller makes a good case that they DO have substantive bite. Furthermore, other theorists — Rawls, Hayek, Dworkin etc. come to mind — have made non-trivial arguments about the rule of law.
Because some people do not specify their rule of law arguments well no more demonstrates that such arguments are per se vacuous than the fact that most people are incredibly sloppy about their use of the concept of “rights” means that rights based arguments are without substance.
Brent,
I disagree with your statement that the judiciary in Massachusetts, Vermont, and Hawaii intentionally miscontrued their state Constitutions when forming the basis for their decisions.
But this response is to ask where in the Constitutional text does it expressly prohibit disparate treatment based on racial classifications. The answer is that there is no language to that effect. The text of the Fourteenth Amendment is “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
The Fourteenth Amendmendt does not mention race as a motive, nor gender. That is one reason why the Supreme Court was able to decide Plessy v. Ferguson the way it did. (See Rauel Berger, Government by Judiciary for more on the Fourteenth Amendment). However, the Court has recognized that these categories of discrete and insular minorities are entitled to strict protection unter the Constitution.
Forgive me if it’s already been addressed here, but what about SSM for brothers and sisters? And polygamy? Bestiality?
The dam has already sprung a leak here in San Francisco with the first gay marriage
http://biz.yahoo.com/prnews/040212/sfth104_1.html
Chris, is there any doubt as to why the 14th amendment was passed. It was to ensure equal treatment based on race. The intent of the law was to prevent the states, particularly the southern states, from denying blacks full citizenship. If you want to get technical, where in the Constitution, any constitution for that matter, state or Federal, is the legislature prohibited from defining marriage to be between only men and women? What in our nation’s history and legal understanding leads to a requirement that same-sex marriage be allowed? Until just last year, when the US Supreme Court decided to amend the Constitution yet again, states had the authority to proscribe homosexual sodomy. How, then exactly can there have been a right to same-sex marriage? States, pursuant to their police power can regulate for the health, safety, welfare and moral benefit of the state. The Court, without any proper basis, stepped in and said “not any more”.
As for whether the misconstruing was intentional, maybe you just haven’t been following this very closely. Many commentators, including those invovled in the case, have commented about how the Chief Justice of the SJC wanted this result. That is why the ruling took several months to be released, because she was trying to get another justice to go along with her. If the justices felt that same-sex marriage should be allowed, then they could have said so in their ruling, but holding that they had no authority to order it. Instead they made a mockery of the legislature and of marriage itself by stating that the legislature could not provide any rational basis for limiting marriage to men and women.
Brent,
I aver that there is doubt. The same Congress that passed the 14th Amendment passed legislation that maintained segregation in Washington D.C. schools, as one instance.(Again see Berger for a fuller explaination).
I do not disagree with you that the the Constitution does not use the terms marriage, or explictly prohibits (or permits) Congress or the States from legislating on certain subject of family or morality. But, the meaning of text of the Constitution is not set in stone. Perhaps it should, but with the acceptance of the concept that the judiciary has the power of judicial review – a necessisity if a written Constitution should not be violated by the legislature (or executive) we open the door for Constitutional interpretation.
Even if the judiciary should not have the power of judicial review, we must recognize that Congress, by it very action of passing rules and legislation, interprets the boundries of the Constitution. Was the first national bank Constitutional? The Constitutional Convention rejected a proposal to allow Congress to establish charters. The bank’s constitutionality was rested on an expanded notion of the necessary and proper clause. Was this interpretation intentional, most likely. Was it an improper interpretaion? Depends in you were Madison or Hamilton.
Why should Congress be reclused from any discussion about Constitutional interpretation? Because they are elected and a judiciary is not? Ok, but if a majority in Congress can pass an interpretation of the Constitution, is there and should there be a check on Congress? Without a check, a written Constitution can not be venerated.
Should our judical rulings be free from scrutiny, no, but in this system of government, our legislatures can correct judicial missteps. However, we must return to the true ends of government. There I will cloak myself in Locke, Jefferson, and Madison.
Our ideas of what is acceptable change over time. Sometimes our standards change when they are revealed to us, sometimes they change because we see the folly (or injustice) or our ways. Have we learned the lessons from slavery, women’s suffrage, internment of the Japanese during World War II, and the Civil Rights movement? Are we a more tolerant society today that at the founding of the country? Is that tolerance a bad thing?
My problem is that looking through our historical record, the same arguments repeat over time. (See Rogers Smith, Civic Ideals). The problem is that as humans we cling to what is known, and generally fear the unknown. New and strange groups are persucuted for not being part of the majority, even when they advocate what is best (or might be best) for humanity. Surely Joseph Smith would agree with that assesment of human nature.
“New and strange groups are persucuted for not being part of the majority, even when they advocate what is best (or might be best) for humanity. Surely Joseph Smith would agree with that assesment of human nature.”
I am not sure what you are advocating here. Are you suggesting that homosexual rights groups are advocating what is best for society? Can you even suggest that with a straight (no pun intended) face? Certainly if you bring Joseph Smith or any other prophet into the discussion, then such a suggestion is ridiculous on its face. I quote “Further, we warn that the disintegration of the family will bring upon individuals, communities, and nations the calamities foretold by ancient and modern prophets.
“We call upon responsible citizens and officers of government everywhere to promote those measures designed to maintain and strengthen the family as the fundamental unit of society.”
This statement was issued in part as a response to the same-sex marriage movement. This simply is not a matter of civil rights. The promotion of immorality must not be tolerated. To do so will only bring calamity upon our nation. Should we treat all people with decency and respect regardless of individual shortcomings? Absolutely. However, tolerance does not demand that we embrace immorality. Furthermore, we are not dealing with a “new and strange group”. Immorality has been around for a long long time. I wish people would stop pretending that somehow legal recognition of a group based entirely on their immoral sexual desires somehow makes us more advanced, progressive or enlightened. It doesn’t. Everyone who posits that state or the federal constitutions demand the recognition of same-sex marriage simply invent arguments to arrive at the result that they want. Changes in social approval or disapproval of these sort of relationships were not meant to be enshrined in such constitutions but are to be left to the people to decide through their elected representatives.
No, I do not advocate immorality. Instead, we must recognize that at this point in our history that our society is bound by civil, not religious law.
It is not our place to force people to agree with our morals. It is not our place to force people to accept the Gospel. It is not our place to take away the agency of others.
We must instead set good examples that our friends and neighbors respect. We must actually, strive for continuous improvement in our attempt to reach perfection. Our examples will lead to improvements in our society.
I do not think that SSM is in anyway part of the eternal plan. However, we do not, and I do not have to accept the civil government’s acceptace of SSM. Instead, I believe that the civil governemnt should have no place in determing who is married or not. I accept the temple marriage as the only true marriage. Civil marriage, in any kind, ends at death. We do not accept a civil marriage of a man and a woman now, why would a SS civil marriage change that view?
There is good and evil, but as long as the church (and its members) remains pure and faithful, we will bear our testimonies to the world and make this whole debate trivial in the larger plan of salvation.
It’s just not true that the church is indifferent to civil marriage. Otherwise we’d ask civilly married converts to repent of fornication when they joined the church, but we don’t.
Law ultimately rests on force, and the ends of law are ultimately moral. To use the oft-cited and never rebutted example, what justifies you imposing your moral objections to murder on someone else? If the lack of consent is the issue, what justifies you imposing your moral views about consent on other people?
Law in this society serves a pedagogical role. It not only punishes and rewards, it educates the citizens about what is right and what is wrong. Law and morality are inextricably mixed.
Here is a short but thoughtful commentary about the importance of preserving marriage:
http://www.meridianmagazine.com/ideas/040213brink.html
I don’t refute the notion that law and morality can not be untied. A recent study of public policy recognized that 2/3 or 3/4 of of the debates in Congress invoke how the legislation will affect families. Obviously families and moral are important to our policy makers.
The question remains, for me, what are the ends of government? To me, the ends of government are to protect ones life, liberty, and property (including freedom of conscience) from unlawful force.
There are better ways to strenghten the eternal bonds between man and wife than to invest in the debate over SSM. Ultimately, the legal debate has turned into a battle over semantics and who can receive benefits.
Yes there are philosohical debates over the role of law, and political debates over language in the constitution. But, how do these debates preserve marriage. I think marriage is cheapened more by no-fault divorces or Brittney Spears type marriages than by two 80 year old females.
Yes we need to stand up for families. Yes we need to cherish eternal marriage, but aren’t there better ways?
Chris, you seem to suggest that those of us who oppose same-sex marriage suddenly woke up one day and decided to go out and make opposition to same-sex marriage the event of the century. People have been taking action standing up for families and marriage in many different ways over the years. The only reason this is such a high profile issue is because homosexual rights activists have mounted an urelenting campaign around the world to try to dismantle traditional marriage and traditional moral values. This is on the front burner because it has been placed there, not by conservatives, but by others.
I appreciate your concerns. This issue has raised a lot of important questions about government’s purpose and our constitutional system (especially within the context of the Federal Marriage Amendment). However, you fail to recognize that what is at issue are matters of life, liberty and property, and who gets to determine the rules governing life, liberty and property. For, instance, legislatures have had to establish rules for the transfer of property upon someone’s death. These rules, predating our Constitution, and the even the state constitutions, generally granted rights to family members (spouses, children, etc.). It only makes sense that this would be the case. Now, however, homosexual rights advocates are demanding that these rules be changed. Who gets to change the rules? It should be the legislature–not the courts.
Let me also make one other point based on a couple of comments you have made. You seem to suggest that not allowing same-sex marriage somehow violates freedom of conscience or free agency. It does neither. People are free to choose what they believe and how they wish to live, however, society need not approve of either. No one forces anyone to agree to our morals, but as a society, we have the right to express our morals and have them reflected in the law, especially as we view such principles as benefitting society. (Look at the government Mosiah set up in the Book of Mormon. There were many moral laws, based exlicitly on God’s laws, but no one was forced to believe in God, or accept such views of morality, although all were expected to obey the law.)