Thursday, June 05, 2008

More Thought on Gay "Marriage"

From R R Reno at First Things.

...in the old system, the state presumed the existence of a substantive, natural reality that required legal adumbration: the union of a man and a woman, and the children resulting from their sexual relations. Now the Canadian government sees that it must intervene and redefine marriage and parenthood in order to give fixed legal standing to otherwise fluid and uncertain social relations. When the gay friend donates his sperm to the surrogate mother hired by a lesbian couple, the resulting “family” is a purely legal construct, one that requires the power of state to enforce contracts and attach children to adoptive parents.

The result is the opposite of the libertarian dream of freedom. As Farrow observes, with gay marriage we are giving over the family to the state to define according to the needs of the moment. The upshot, he worries, will be a dangerous increase in the power of the state to define our lives in other realms once thought sacrosanct. “Remove religiously motivated restrictions on marriage,” he writes, “and it is much easier to remove religiously motivated restrictions on human behavior in general, and on the state’s power to order human society as it sees fit.” The libertarian dream turns into the totalitarian nightmare. Who can or cannot be a spouse? That’s for the state to decide. To whom do children belong? It’s up to the state to assign parents as its social workers and judges think best.


That libertarianism leads to tyranny is not news. ANY system which sets out to re-fashion society according to "ends" which are either un-natural or in defiance of Creation (and the Creator) is dangerous--mostly because those who fashion such a system are substituting themselves for the Creator.

Reno re-states what's been said here before:

Much like the current abortion regime and the slavery jurisprudence of the antebellum era, proponents of gay marriage imagine that they can redefine inconvenient, permanent realities and remove traditional barriers to the relentless human desire to get what we want. The idea that “bride” and “groom” are not gender specific is a current sign of the absolute triumph of the political will. When we accept that judges and legislators possess the power to define the meaning of marriage, then it’s hard to imagine what would limit the state’s power to redefine social reality other than “personal autonomy,” which turns out to be no limit at all, since everything is desired by somebody somewhere. For all we know, Leona Helmsley wanted to marry her dog.

That 'personal autonomy' was enshrined by Kennedy in Casey, by the way...

As to the larger implications, Reno cites Burke.

Edmund Burke saw that revolution motivated by the unattainable ideal of equality would destroy the deep, pre-political social mores that restrain the will, including the political will; and this restraint is essential for the preservation of liberty. Our contemporary cult of tolerance differs from older fantasies of equality, but the notion that we can accommodate everybody’s desires is just as unrealistic...Human beings cannot live together without a felt force of restraint. What should worry us is the migration of that force outward and into the hands of political actors.

One can only hope that the libertarians and social reconstructionists pause to think. For if Positive Law (political law) becomes regnant, what the State gives the State may well take away, and the reactionary swing of the pendulum may not be to the liking of the libertarians.

10 comments:

John Foust said...

I thought the Libertarian position was that the State shouldn't be involved in "marriage" at all - but this doesn't really tell us how to move towards or away from all the automatic grants of contracts and rights now lumped under heterosexual civil marriage.

Dad29 said...

Umnnnnnhhh...I don't think Reno meant the Lib. Party--he meant the libertarian (or liberal/Left). That's why he used the small 'l.'

As to "rights," all the common rights-problems had actually been resolved in California through legislation BEFORE SCOCA made its ruling, unlike in Wisconsin.

Hospital visitation, inheritance, yadayada were all resolved.

Children is another thing entirely.

PaulNoonan said...

what the State gives the State may well take away, and the reactionary swing of the pendulum may not be to the liking of the libertarians.

Yeah, it's you guys that are giving the state all of this power to give handouts and take private property. Don't go accusing libertarians of using government to bestow ill-gotten good to the less fortunate. We don't like the government having that power, period.

Nearly all libertarians want government out of the marriage business, equal application of marriage welfare is a second-best solution.

As Farrow observes, with gay marriage we are giving over the family to the state to define according to the needs of the moment.

This may be the most stupid thing ever written. This was just as true with striaght marriage.

Dad29 said...

Paul, you disappoint.

First off, as was made clear in the combox (and in the article cites) it is not the Libertarian PARTY to whom Reno refers. It is the libertarian/liberal zeitgeist.

Second, Farrow's observation happens to comport with the last several thousand years of human history. You may not LIKE that, but it does not detract from the veracity of the statement.

More and more, over time, it becomes clear that rational argumentation is not your thing.

PaulNoonan said...

I used a "small l" for a reason. That reason was specifically to separate my use of libertarian from the nuts in the Libertarian Party. (l)ibertarians and liberals (at least as the word is used today) have so little in common it is hard to see how they could have any type of convergent movement worthy of the lable "zeitgeist."

As for Farrow's grasp of reality, when has any libertarian state even existed, let alone turned into some kind of totalitarian nightmare. The totalitarian states develop from command and control or monarchical seeds, not from the protection of individual rights.

Farrow's arguments do not stem from history. What's the word you like? Ah, yes. Foofoodust.

That libertarianism leads to tyranny is not news.

When has this ever happened?

ANY system which sets out to re-fashion society according to "ends" which are either un-natural or in defiance of Creation (and the Creator) is dangerous--mostly because those who fashion such a system are substituting themselves for the Creator.

(l)ibertarianism does not set out to refashion society. Our goals are to remove government as a barrier to existing society, at which point society may do as it sees fit. Those who are substituting themselves for the creator are those who seek the power to order people around. (l)ibertarians wish to limit the power of these people. When you place an aspiring moral arbiter into political office, then you have usurped God.

Amy said...

That libertarianism leads to tyranny is not news.

When has this ever happened?


Look at Canada, New Mexico, New Jersey, and Massachusetts.

I'd say the "hate crimes" legislation specificially targeting a certain group (Christian conservatives) and stifling their right to free speech, free thought and free expression of religion is pretty damn close to tyranny.

PaulNoonan said...

look at Canada, New Mexico, New Jersey, and Massachusetts.

I see a socialist democracy, and three lefty states. You may as well have said "look at this picture of an elephant."

I'd say the "hate crimes" legislation specificially targeting a certain group (Christian conservatives) and stifling their right to free speech, free thought and free expression of religion is pretty damn close to tyranny.

(l)ibertarians are agaisnt hate crime legislation.

Amy said...

Perhaps then the appropriate word is not (l)ibertarians but libertines...

Either way, does the fact they are a "socialist democracy and three lefty states" make it right? Does that make it any less tyrannical?

While Canada doesn't have our Bill of Rights, per se, they *do* have a document of sorts that (supposedly) guarantees the same rights as our Constitution.

As for the other states, when they become 'lefty', are they no longer bound by the Constitution?

I think not.

Virgil said...

This is a great thread. I hope I am not too late weighing in.

As a gay man in a committed, faithful partnership, I have often resented the idea that my attempts to lobby for a legal and financial definition for my family are somehow an attempt to RE-define marriage.

Instead, they are merely an attempt to DEFINE something that currently exists in limbo (small "l"), namely the lives of me, my partner, and our children.

We pay taxes to the Government, but we receive no access to the legal systems that the Government is supposed to enforce. These include responsibilities and benefits and the pretections of the rule of law.

How can I seek this definition? Let me appeal to your three l-words.

The LIBERAL solution is probably the least disruptive, which is why we see it in Canada, the Netherlands, etc. These countries simply open existing protections to more families.

The LIBERTINE solution is to get rid of the idea of marriage completely, and throw in birth control. Give gay and straight folks the freedom to copulate ad random, no strings attached. Culturally, straight folks are leading this effort. Gay folks have been there and see that it doesn't work.

The LIBERTARIAN solution is to separate the legal and the religious dimensions of family. Keep Government handouts for families to a minimum, but make the legal structures surrounding families open to all households.

Personally, I prefer the last.

My challenge to Dad29 in this and other threads, is for him to answer the questions: "Dad, what do you think I should be lobbying for? How can I best build a life for my partner and children?" Dad seems opposed to any sort of solution for me, L-words not withstanding.

Dad29 said...

Thanks for an interesting response, Virgil.

It's likely that I will at least partially disappoint you, however, because I will argue that we should leave your situation in 'limbo,' albeit with some minor adjustments. For purposes of the discussion, I will use your definitions.

1) We seem to be in agreement that the Libertine "solution" is erroneous. Good.

2) California laws allow for inheritance, hospital visitations, etc. Other than the tax "benefit" allowed under Fed/State laws, homosexual couples in CA had all the legal bases covered prior to the SCOCA ruling on 'marriage.' It seems (finite details aside) that CA's previous regime mirrored that of Canada/Netherlands. (One wonders why the lawsuit occurred.)
Although churches were wary of the situation in CA., they seemed to be agreeable about it in general terms.

Frankly, I could live with that, too, in the civil order--so long as the term "marriage" was not involved. (I have only one major reservation--that having to do with the effects on the children. There are studies (as you know) which raise questions on that issue.) To me, it's a "live and let live" kinda thing and if it preserves civil order, so be it.

But as to legal positivism--defining "marriage" to include homosex couples, (the Libertarian position) I say no.

That goes to the origin and history of marriage. In fact, marriage is both religious AND civil--and the 'civil' is a late-comer, having only been in common usage since the mid-1800's or so in the West. The Western Judaeo-Christian tradition is mirrored in the East, as well; the only major exception to Western 'marriage rules' is found in Mohammedan practice, which resembles that of pre-Christian Rome--the "paterfamilias" model. But even in Rome, we can see a similarity.

This tradition has weight and meaning. The weight is self-evident: well over 5,000 years of settled practice. The meaning is this: that marriage was ordained by Someone other than the State.

Since J/C tradition (and its Eastern counterparts) "worked" for all that time, the model is good. (It is so good that homosexuals wish to purloin it.)

But there is an irreconcilable difference between the model and a gay knockoff--that of the possibility of fecundity.

I argue that it is impossible to remove that element and simply by fiat declare "marriage" to exist.

I also argue (contra modern society) that a 'marriage' following divorce is not "marriage" in the strict sense, unless such divorce was actually a result of the nullity of the original 'marriage.' But for the sake of civil order, I accept the legality, as I would the legality of the CA/Holland models. (The effect on the children is deleterious, by the way, and some day that chicken may come home to roost.)

Summarily, I cannot "create" a solution for you--I am not arrogant enough to re-write the model.