To Save Constitutional Liberty, Save Marriage

With advocates’ having finally managed to bring the issue of same-sex marriage to the Supreme Court, it is critical that those who believe in limited government understand one thing: If the Constitution does not allow the people of the United States to maintain the traditional definition of marriage, then it does not allow them to govern themselves.
One often hears the classic quotations of the American Founders, such as “our Constitution was made only for a moral and religious people,” but we can go ol’ John Adams one better: Plainly stated, there is no mechanism for limited government — not federalism, not separation of powers, not representative democracy — that can maintain freedom if the government cannot reflect, but can redefine, the culture of the governed.
Put differently, if the people of the United States cannot insert cultural notions into government that would be wholly inappropriate coming from elected officials, then elected officials will use government to change the culture to their advantage or their own liking. That could be same-sex marriage. It could be some vague “holiday tree” during a school celebration of the solstice. It could be the assumption of Big Gulp evil. Or it could be the elevation of “equity” above Truth and Justice.
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Russ
Russ
8 years ago

Oh, brother. Warrentless wiretapping, rendition, execution of Americans abroad… no problem. Marriage equality? To the barricades, right-wing commrades!
Freedom is slavery, indeed.

jgardner
jgardner
8 years ago

“Constitution does not allow the people of the United States to maintain the traditional definition of marriage”
People have a fundamental right to love whomever they want to love, and to equal treatment from the government. If the gov’t provides the spouses of heterosexual couples certain privileges (power of attorney, SS death benefits, etc…), it has to either eliminate those privileges entirely or provide those same privileges to the spouses of homosexual couples. Anything less is a violation of due process.
“Put differently, if the people of the United States cannot insert cultural notions into government”
Black Codes and Jim Crow laws were “cultural notions inserted into government”. Does that mean changing/removing those laws meant we were giving up our right to govern ourselves?

Dan
Dan
8 years ago

The simple fact that an otherwise logical and persuasive writer is forced to perform these mental acrobatics in such an incoherent mess of a post is indicative to me that the conservative position on same-sex marriage is backwards and misguided. It shouldn’t be this difficult for an advocate to defend something so “obvious.”
The Constitution is the supreme law of the United States. The judiciary interprets the Constitution, which sets what the state can and cannot do. The indisputable status quo (which libertarians oppose) is that marriage is a legal institution administered by the state. Therefore, if the judiciary finds that the Constitution prohibits invidious discrimination against gay individuals, then the state cannot discriminate against gay individuals in its legal institutions, including marriage. Nowhere in this logical sequence would people be prohibited from defining their own marriages in religious or social terms; only the legal ramifications would change. You can’t have it both ways – either marriage is a legal institution or it isn’t. If it isn’t (the libertarian position), then the state cannot change it. If it is (the statist position), then the state can change it through the political process. I don’t know why this is such a difficult issue.

Justin Katz
Justin Katz(@justin)
8 years ago

Dan,
Objectively speaking, there are two possibilities, here. Either I’m trying my mightiest to distort logic to conform with my illogical religious beliefs, or you’re not understanding what I’ve written because you don’t want to reach the logical conclusion that I do. I think it’s the former, but I understand that you’d disagree.
I never said the principle that I’m articulating is “obvious,” so I don’t know why you put that word in quotation marks. My broader point is that the critical operational attribute of marriage in Western society is that it ought to be “obvious” that the intimate relationships between men and women are unique in a very important way and that reality creates a unique category of relationship.
My specific point with this essay was that other things that you and I agree should be “obvious” in a similar way are not immune to the same process of changing the culture via the government as same-sex marriage. Property rights? The value of free economic exchanges? The difference between available assistance and entitlements?
As you say, if the judiciary finds that our shared interpretation of the law is incorrect, well then, what’s the worth of the Constitution?

Justin Katz
Justin Katz(@justin)
8 years ago

jgardner,
Due process requires that two people be in the same category. That principle is intrinsic to the law; otherwise the government could not operate. The question is whether men and women in sexual relationships are in the same category. “Love” is wonderful, but I don’t consider it the core attribute of marriage. Some cultures still make “love” a secondary consideration for marriage, and yet nobody would dispute that they are married. Nobody disputed that the familial relationship between male and female slaves was a “marriage”; that was the word, they just asserted that blacks didn’t have the same rights under it.
Relatedly, what is the government’s special interest in “love”? How is that a government interest? Why shouldn’t any two people… or more… and people who are related have access to that institution if it’s not about the ability of sex to create children?

Justin Katz
Justin Katz(@justin)
8 years ago

Here’s a more concrete, directly related analogy: The language is a cultural phenomenon. Americans understand what it means even though very few people know the etymologies, the multiple technical definitions, and so on, and they use it in creating the law. In the case of the word “marriage,” the judiciary and other government action have been central in redefining “marriage” very very quickly to mean something other than what everybody understood it to mean in order to bring it into the range at which the government can change the meaning of the law. That can happen with other words, too.
See this by taking the word out of it. Every use of the word “marriage” in the law could have been replaced with “the relationship between men and women, almost always involving the birth of children at some point in their lives.” In the past decade, really gaining steam through abuse of the judiciary, that has been changed to “two people in love” by manipulating the word.

Dan
Dan
8 years ago

Justin – The Constitution is based on the principle of checks and balances. I’m not going to claim it works perfectly – hence the imporance of eternal vigilance – but there are mechanisms in place to address the potential abuses of state power you seem concerned about. If the judiciary runs amok, the people can amend the Constitution through a rightly difficult process. However, within the Constitutional framework, I don’t know how you can logically conclude that changing a legal institution administered by the state through the political process is an abuse in the first place – that’s how it is supposed to operate. As we libertarians are constantly pointing out, the whole reason this is a debate in the first place is because marriage is administered by the state. Place it back in its proper religious and social contexts and people will be free to define it how they wish, conflict resolved. You seem to want to have your cake and eat it too – enforce your interpretation of marriage through the state and then prevent the definition from ever being changed. That is tyranny.

Justin Katz
Justin Katz(@justin)
8 years ago

My point with this essay is that this is an area that libertarians should be wary of letting slide through the judiciary. Saying “that’s just how it works” when you like the issue is a good way to weaken your own protective walls. You shouldn’t rely on the ability of the people to amend the constitution in reaction to an overreaching judiciary; we must rely on the judiciary’s understanding that it must follow the rules in the first place. That is what’s eroding.
In order to paint me as the tyrant, you lose track of an appropriate logical perspective: Objectively, a change to the law is the action, whether it’s to eliminate a law that existed (say, freedom of speech) or to implement a new one (e.g., ObamaCare). Marriage preceded the state; the state just acknowledges it as a reality.
If you want to change the terms of the law’s interaction with the culture, the method is Constitutional.

Russ
Russ
8 years ago

“Why shouldn’t any two people… or more… and people who are related have access to that institution if it’s not about the ability of sex to create children?”
What a red herring. That’s not an issue of an individual’s equal rights. If a state wanted to change marriage in that way (and that would truly be a change to the definition of marriage), there’s nothing in the Constitution preventing the people from doing so. Discriminating against homosexuals on the other hand clearly is a case of denying legal protections on the basis of sexual preference or gender.
Your repeated attempts to redefine marriage as only about childbirth only make the mental gymnastics required to hold that position more and more obvious to anyone reading.
Would you therefore not object to denying marriage licenses to the elderly or the infertile, or do you feel differently about discrimination on the basis of age or disability?

Dan
Dan
8 years ago

The state institutionalized marriage by law according to the prevailing culture at the time, but in doing so, marriage became fair game for the political process to amend in the future. This is the inherent danger of institutionalizing cultural norms through the state, which is why libertarians are reluctant to do so. Conservatives were happy when the state was enforcing their definition according to prevailing cultural norms. But prevailing cultural norms are now changing and conservatives still want their definition enforced, regardless of any popular or political will to do otherwise. That is what I’m calling tyranny. Maybe a more appropriate label would be political opportunism, or the ends-justifying-the-means utilitarianism typically associated with the progressive movement. Those who live by the sword inevitably die by it, and that perfectly describes what is happening to state-enforced “traditional marriage.”

Sammy in Arizona
Sammy in Arizona
8 years ago

Well said Dan
The reason for supporting gay marriage from a societal standpoint are the same reason for supporting traditional marriage. Increased societal stability
Bottom line is there are no rational arguments against gay marriage and there are plenty of good ones for it.

Dan
Dan
8 years ago

Sammy – I don’t fully agree with your logic because my support of gay marriage has nothing to do with utilitarian social engineering, but it’s nice to see you contributing content for a change instead of trolling. Maybe OldTimeLefty will follow your example and participate in a discussion one of these days.

jgardner
jgardner
8 years ago

Justin,
I’d add more to this conversation, but I believe Russ’ comment regarding discrimination based on fertility or age and Dan’s comment regarding the institutionalization of marriage sum it up quite nicely.
Well said gentlemen.

Justin Katz
Justin Katz(@justin)
8 years ago

Russ,
We’ve been over and over the “infertile and elderly topic,” and I’ve offered the same reply for years, and it’s never been addressed. I’ve observed that most of the arguments in favor of SSM are one-tier only: “This is the way it is, and there’s no argument against it.”
I realize nobody’s minds are open to change, here. But I ask that y’all keep the thoughts in mind as things move forward. We get the society that we prepare for. Two years running, RI’s first-born baby apparently has no father, per the Providence Journal’s stories about them.
Marriage must link parents to each other and the children that they create. It isn’t necessary that every married couple winds up having children to reinforce the principle that the activity that creates children should be done within marriage.

Dan
Dan
8 years ago

Justin – We get that all laws are overinclusive and underinclusive to some degree, but it would be a simple matter to amend marriage laws to remedy overinclusiveness based on the child-rearing rationale. That you would not support restricting marriage based on age or fertility but do support excluding same-sex couples is persuasive circumstancial evidence of an intellectual smokescreen masking religious intolerance against homosexual couples. I don’t think this is the best argument for same-sex marriage by any means, but it does highlight a logical inconsistency in your peculiar brand of conservative opposition to it. To be perfectly honest, I have more respect for the religious argument because it’s logically consistent within its own framework.

Justin Katz
Justin Katz(@justin)
8 years ago

Two points, one specific, one general:
1. The state cannot know whether couples are “infertile.” Actually, even “infertile” is very often not the same thing as “sterile.” Imagine how intrusive a regulation would be to test for fertility.
2. My reasoning is only illogical and intolerant if you believe that sex involving a male reproductive organ and a female reproductive organ is indistinguishable from the forms of sex that are possible between two people of the same sex. It isn’t an intolerant value judgment to observe that such a view would be absurd and deliberately illogical.
You should really evaluate your motivation for assuming that I’m just disguising (or ignorant of) the intolerance that ostensibly underlies my argument. I’ve been making this argument since long before most people in America even knew that same-sex marriage was a possibility; the idea that it’s intellectual back-filling is just foolish.

Russ
Russ
8 years ago

“Marriage must link parents to each other and the children that they create. It isn’t necessary that every married couple winds up having children to reinforce the principle that the activity that creates children should be done within marriage.”
Ah, except that many, many same sex couples have children. You seem to think the act of creating children is more relevant than the act of actually raising them within a marriage.

Russ
Russ
8 years ago

“My reasoning is only illogical and intolerant if you believe that sex involving a male reproductive organ and a female reproductive organ is indistinguishable from the forms of sex that are possible between two people of the same sex.”
As I suspected, clearly all about the sex act for some. Sex being but one of the many ways modern couples can have children.

Justin Katz
Justin Katz(@justin)
8 years ago

Russ,
You’re missing the point. The purpose of an institution like marriage is to pull in people who would be irresponsible and get them to be more responsible. The target group, in that regard, is the population that will create children and not take care of them. That’s not quite the same issue for homosexual couples that it is for heterosexuals.

Justin Katz
Justin Katz(@justin)
8 years ago

Russ,
Sex is the only way to create children without the involvement of third parties in some sort of transaction. If you’re going to go there, I don’t see how you could ever call any couple “infertile.”

Tommy Cranston
Tommy Cranston
8 years ago

Ah, except that many, many same sex couples have children.
Posted by Russ at January 17, 2013 4:11 PM
No Conway there are and never will be freak “couples” who have children.
Heather can’t have 2 mommies. She can have one (sick f***) mommie and one woman pretending to be a mommie but totally and completely unrelated to the child. A 4th cousin is more family to the child than that unrelated female.

tito souza
tito souza
8 years ago

Are the authors of this site really proud to allow Tommy Cranston and his nasty hate speech.

Justin Katz
Justin Katz(@justin)
8 years ago

Are you proud to live in a country in which people can say things with which you don’t agree?

Tommy Cranston
Tommy Cranston
8 years ago

Marginalize dissent, censor dissent, incarcerate dissenters, exterminate dissenters.
The “progressive” playbook since 1789.

tito souza
tito souza
8 years ago

JUstin does your brand of Catholicism support those who speak and write with such hatred and venom. Tommy called someone a sick F*** because they are gay. you guys are awesome at promoting hate by turning a blind eye towards that creep.

Justin Katz
Justin Katz(@justin)
8 years ago

Tommy pushes the rules on the right as others do on the left. I’ve been attacked much more specifically and directly and let it stand. We can’t be tolerant only of liberal attacks, to prove we’re tolerant, and intolerant of far-right attacks, also to prove we’re tolerant. That’s a good example of how the left wins by twisting the rules to serve itself.
Of course, your strategy is nothing if not well established… paint somebody with whom you disagree as beyond the pale because he won’t actively silence others. It isn’t “promoting hate” to allow an open forum with basic rules of civility to the participants.
You, on the other hand, are awesome at promoting ignorance the drive toward censorship. Not surprising that you prefer to be anonymous.
Talky about creepy.

Justin Katz
Justin Katz(@justin)
8 years ago

By the way, it should take only a moments thought (if you’re inclined toward thinking) to realize how much I’d prefer if folks like Tommy would control their language and how much it would advance my own argument if I were to make a show of silencing him.

tito souza
tito souza
8 years ago

Justin why is my posting anonymous such a bad thing. It would seem that quite a few people do that here on this blog.

Justin Katz
Justin Katz(@justin)
8 years ago

It’s relevant, given the thrust of your comments.

David S
David S
8 years ago

Justin has just admitted that he completely agrees with Tommy Cranston. But Tommy please just tone down the language. Talking points, Tommy, talking points.

Justin Katz
Justin Katz(@justin)
8 years ago

I did no such thing, David, and you know it. For some reason, I’d thought better of you.

Phil Spadola
Phil Spadola
8 years ago

In the latest instance it’s “Tommy Cranston”‘s comment that has received criticism of being hate speech against gays that JK tolerates. A couple of weeks ago it was the comment of Warrington Faust in which he uses the term “Casino American” to describe Native Americans that Justin Katz has refused to take on and make any kind of comment. I asked for some kind of comment from those who run and contribute to this blog to no avail. I never asked that the comment that I found to be offensive and racist be deleted or its author to be silenced, but i do find it mystifying that not one of the people who control the content on this blog would speak to the racist comment at all. Not one. Ken Block and John Loughlin have both been leaving comments here and I seriously doubt that they would wish to be associated with that kind of language. The failure to address these offensive comments is like allowing your pet to defecate on the floor and then inviting guests in without having the sense and decency to clean up the mess. If it were me I would rub both their noses (Warrington Faust and Tommy Cranston) in the mess they left and boot their asses out. But I have no idea what kind of relationship exists between these two and Anchor Rising and if one exists is that the reason for the reluctance of Justin Katz to address the issue of hate speech and racism on his blog.

tito souza
tito souza
8 years ago

Justin, please explain how my commenting without using my full name like many other do on this site is relevant given the “thrust of my comments.’ I think your lack of comments towards the ignorant posting of Tommy Cranston(is that his real name)show that you allow posters to do the dirty work for you. He said it but likely think it.If you didn’t, you wouldn’t allow such stupid hate speech. Remember he called gay people sick f_cks and freaks but you can only attack me for posting without my full name.

Justin Katz
Justin Katz(@justin)
8 years ago

I very rarely jump into comments. The fact that a couple of commenters buy into the decades of politically correct investment in creating “unspeakables” doesn’t make any given comment more or less deserving of my time to take a moral soapbox.
Look, I’ve been battling Tommy Cranston’s dumb comments for years and decided that it’s usually not worth my time. Frankly, it’s bullying, offensive, and nearly totalitarian that the default assumption is that one must agree with offensive comments that one doesn’t go out of his way to condemn.
I’m not going to seek you McCarthyites’ seal of approval to prove I’m not a racist.
Forums for public debate are more like arenas than dinner parties. If it’s too messy for your tastes, have your PC tea elsewhere.

Tommy Cranston
Tommy Cranston
8 years ago

The following incongruity was:
Posted by Phil Spadola at January 22, 2013 9:51 AM
” I never asked that the comment that I found to be offensive and racist be deleted or its author to be silenced”
“If it were me I would rub both their noses (Warrington Faust and Tommy Cranston) in the mess they left and boot their asses out”
The playbook of the “progressives” since the days of Robespierre.
First marginalize dissent; secondly censor the dissenter; thirdly imprison the dissenter; lastly exterminate the dissenter.

tito souza
tito souza
8 years ago

Tommy is your mind capable of disagreement without hatred, discussion without insults and name calling?

tito souza
tito souza
8 years ago

Justin, please explain how my commenting without using my full name like many other do on this site is relevant given the “thrust of my comments.”

Justin Katz
Justin Katz(@justin)
8 years ago

Because you were counting us (non-anonymous) contributors as culpable because we haven’t silenced another commenter. The act of calling for censorship would be more courageous from somebody not hiding behind a fake name.

Tito souza
Tito souza
8 years ago

Justin since your site allows anonymous commenting and some may say attacks on all things union and all things gay and all things liberal your argument is very weak. I never asked for you to silence Tommy but would expect a good catholic or anyone following in the footsteps of Jesus to speak out in the face of such hatred and nastiness. I think that by not speaking against it you condone it and you know i am correct so the only avenue you have is to attack me for deciding to remain anonymous. I have never seen you do the same with someone agreeing with your positions.

Justin Katz
Justin Katz(@justin)
8 years ago

You need to read a bit more closely, it would seem. There are frequently attacks on all things conservative, Christian, etc. I can’t possibly speak out against all things nasty that’s said here or elsewhere, so I generally rely on the likelihood that readers will be able to discern such comments for what they are without my help or my moral preening. It seems to me that most of the time Jesus saw people behaving poorly, He took it as an opportunity to teach His disciples, not to chase down the person and berate him or her. In the cases you’re complaining about, I’m confident that not a single reader is insufficiently aware to require a lesson.
Again, I leave many hateful comments pointed in the opposite political direction without a decree from me that they are mean and nasty. It is not at all evidence that I condone it. I raised your anonymity because of the McCarthyite tactics that you persist in deploying.

Phil Spadola
Phil Spadola
8 years ago

Because you were counting us (non-anonymous) contributors as culpable because we haven’t silenced another commenter. The act of calling for censorship would be more courageous from somebody not hiding behind a fake name.
Posted by Justin Katz at January 22, 2013 7:30 PM
I’m right here. Explain why you do not at the very least comment on the hateful comments left here by frequent commenters on your site. I am using my name and have not called for deleting or silencing anyone. I am not accusing you or any of your contributers of anything except ducking the issue.

Justin Katz
Justin Katz(@justin)
8 years ago

I do not comment on much that’s said here, hateful in any direction. One reason is time; as this exchange shows, opening the door of that discussion creates a whole lot of exhausting back and forth. Not only that, but as I found very clearly in the last election cycle in Tiverton, there’s nothing I can say that won’t leave me open to unfair personal attacks in comments and front-pages alike. “He didn’t react” becomes “he didn’t censor” becomes “he didn’t ban” becomes “he didn’t ban everybody who might believe the same things.” If I’m going to be bullied anyway, I might as well try to find what I believe to be a fair general policy.
The bigger reason, though, is that I simply find offensive and totalitarian the impulse to require people to get in line to voice denials of other people’s statements that have been labeled offensive. If commenters are pointing the barbs at each other, I step in (with some consideration of the target’s previous behavior and who’s anonymous), but in general, I’m not going to legitimize the social rule that we must pronounce a certain number of “Heil PCs” as an act of contrition for being in proximity to somebody who’s said something mean.
If you think that innocent readers won’t see the objectionable comments for what they are, then take a moment to explain it. But if I haven’t proven through the hundreds of thousands of words of mine that you’ve probably read, at this point, that I neither share the nasty sentiments nor enjoy their association with my considered argument, then a dozen or two more words uttering condemnatory incantations isn’t going to make a difference.

Phil Spadola
Phil Spadola
8 years ago

“The bigger reason, though, is that I simply find offensive and totalitarian the impulse to require people to get in line to voice denials of other people’s statements that have been labeled offensive.” Great. I’m now a totalitarian for asking you to address offensive racist comments on your blog. We exchanged emails on the subject and I remained silent as I waited for you to present an essay or some other response. “If you think that innocent readers won’t see the objectionable comments for what they are, then take a moment to explain it.” Fair enough. I was so angry by the racist comment at the time that I did not feel as though I could respond with any degree of civility. Nor did I want to engage directly with “Warrington Faust”,a frequent commenter on your blog, who has with previous comments made it clear that racial issuses are ever present in his thinking. His term “Casino American” was in my estimation a racial slur and more offensive than his previous pattern. I thought that a comment from the owner of the blog may have some affect and stop an escalation of racial comments from this well known (at Anchor Rising) commenter. I reached out to you via email and as I have stated. Nothing. “But if I haven’t proven through the hundreds of thousands of words of mine that you’ve probably read, at this point, that I neither share the nasty sentiments nor enjoy their association with my considered argument, then a dozen or two more words uttering condemnatory incantations isn’t going to make a difference.” Posted by Justin Katz at January 22, 2013 8:52 PM If I thought that you do share the “nasty sentiments” then I would not have appealed to you to respond in the first… Read more »

Phil Spadola
Phil Spadola
8 years ago

“When truth is replaced by silence,the silence is a lie.”
― Yevgeny Yevtushenko

Justin Katz
Justin Katz(@justin)
8 years ago

Sorry, Phil. Only so many minutes in a day, and I’m not sure what more can be added here. Your response, coupled with others’, is within a cultural context of people on the Left using such phrasings to corner their political opposition. You may not intend it as such, but that’s where it is.
As for what I find offensive I see two species of offensive comments, here, and my inclination in both cases has been to leave them alone as much as possible. I don’t see why you’re aggrieved about that.

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