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Judge Walker and the Language of the Law Print E-mail
By Hadley Arkes   
Monday, 16 August 2010

Archeologists of the law may one day come upon these words: “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.” Now imagine recasting the sentence in this way: “Relative gender composition aside, same-sex couples are situated identically to opposite-sex couples in terms of their ability to beget children.” The first line was written by federal Judge Vaughn Walker in San Francisco as he struck down the constitutional amendment passed by the voters of California, a move to restore the traditional understanding of marriage as a legal relation of a man and a woman.  Judge Walker’s argument made sense only if the notion of begetting was conspicuously removed from the very meaning and purpose of marriage. Surely, marriage is not necessary for love: There is genuine love between grandparents and grandchildren, brothers and sisters, and in the nature of things they cannot be lesser loves because they are not attended by penetration and expressed in marriage. 

Marriage is not necessary for love, but the law of marriage finds its deep justification as a framework for the begetting and nurturing of children. A commitment confirmed in law is a commitment in the truest sense: it marks the fact that the parents have foregone the freedom to quit their relation to each other and their children as it suits their convenience.  And if the purpose is begetting children . . . well, that is the very reason that there are, in nature, men and women. That is the telos or very purpose contained in the fact that we were made, each of us, as a man or a woman. 

That opening line from Judge Walker is one of only a few score that have been zinging around the Internet, soaring well beyond the tethers of reason and propositional logic. Walker’s opinion may not hold up on appeal, but his lines could lighten up our lives for years to come as they make their way into fortune cookies. 

There was never actually much doubt about the outcome in Perry v. Schwarzenegger. Judge Walker’s handling of the case revealed a leaning flamboyantly out of the closet. There has been much complaining about the so-called “facts” that Walker was willing to proclaim on the basis merely of opinions offered by so-called “experts.” But the outcome of the case on appeal will not turn on any facts gleaned from the social sciences. That is a long story, best left to another time. What is more striking here is that the resolution of the case was virtually determined by the premise planted in the law by Justice Anthony Kennedy in Romer v. Evans in 1996: The willingness to cast an adverse judgment on the homosexual life can be explained only by an “animus [lacking] a rational relationship to legitimate state interests.” Generations of reflection, running back to the ancients, could be dismissed as one long, thoughtless spasm of irrational “animus.”

With that premise planted, the arguments over Due Process or Equal Protection could be churned out in an instant. Due Process? People were suffering a harm, they were denied a benefit, their liberty to marry was being denied, on grounds that were irrational, and therefore arbitrary. Hence, the denial was unjustified, wrong. Equal Protection? Couples of the same sex were not accorded the same rights to marry as couples composed of men and women. Even if “domestic partners” were given many of the same benefits of marriage, they were treated as morally inferior, not worthy of marriage. They suffered a harm or wounding because they were treated unequally and for no rational reason. Hence, the unequal treatment was unjustified, wrong. 

But behind all of this was a trend long in the making, a radical recasting of the language and logic of a “moral” judgment. In the relentless march of “relativism,” good and bad, right and wrong, were translated to mean merely the things we “like” or “dislike,” a matter of personal taste. Justice Hugo Black would famously deride appeals to natural law and moral reasoning by reducing them to subjective beliefs. An argument with strenuous reasoning would be translated to mean that the advocate simply “liked” or “disliked” the policy. 

And curiously enough that same translation has come even from conservative and Catholic jurists in our own day who have been suspicious of natural law and the judges who invoke it. With Judge Walker the conversion of terms took this form: “the state cannot have an interest in disadvantaging an unpopular minority group simply because the group is unpopular.” Walker simply rules out the notion that there may have been reasons for turning away from the homosexual life. Homosexuals were simply “disliked,” an aversion without reason. “Moral judgments” come down in the end to irrational beliefs; and they could supply then no justification for the law.

In this way, the wave of relativism inverts language and dissolves any moral ground for the law. What is left then is the bald power of a judge to strike down whatever is enacted. Justice Holmes hoped that “every word of moral significance could be banished from the law altogether,” and Judge Walker stands in the line of his heirs. The result, in this case, is to deprive the people of California of the freedom to deliberate and vote on a matter of moral significance that stands at the very matrix of the laws.

 
Hadley Arkes is the Ney Professor of Jurisprudence at Amherst College. His most recent book is Constitutional Illusions & Anchoring Truths:  The Touchstone of the Natural Law

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written by Other Joe, August 17, 2010
There is a little noted "rider" in the concept of law formed in the age of relativism. It is the esthetic basis for morality. If it looks bad, it must be bad. That concept morphs easily into the idea that if some event or circumstance makes someone feel bad, it must be bad. Nietzsche understood the primacy of esthetics in a godless world. Since consequences make people feel bad, it seems to the contemporary do-gooder that consequences must be abolished. People should not be punished with children just for having sex as our president famously quipped.
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written by Emina Melonic, August 17, 2010
Brilliant essay, Prof. Arkes.

On a similar note: the other day, I glanced on the Internet that two men (one of them being some celebrity, whose name I cannot remember) are very happy in their relationship, and that they are "expecting twins." I turned to my husband and said: "Funny. I was not aware that two homosexual men have the physical capabilities of expecting twins."
The article went on to say that one of them already had "experience in dealing with children from his previous [homosexual] relationship, even though he was not the primary parent. Rather, his partner was." Experience? It is as if having a child is like having a dog. As if having children is something you try on for a while.

An upside down world, indeed. But I must be hopeful that the order of things will always be an absolute reality, and that when it feels like it is out of our reach, it will be restored.
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written by Christian, August 17, 2010
Given how thoroughly the West has separated children from marriage in the last 45 years or so, I don't see on what basis heterosexuals can deny gays the right to "marriage." It's the straights that turned marriage into "marriage," not the gays.
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written by Doughlas Remy, August 19, 2010
Judge Walker’s decision was entirely correct and consistent with prior Supreme Court rulings about marriage. In a 1987 decision overturning a Missouri law that prevented imprisoned felons from marrying, the court upheld a “right to marry,” subject to certain restrictions regarding bigamy, consanguinity, etc. They were in effect saying that marriage is not a question of physical relationships or procreation. It is primarily about liberty and freedom of association.

Your view that “marriage finds its deep justification as a framework for the begetting and nurturing of children” is extremely narrow and ungenerous toward childless couples as well as adoptive parents. You allude to the “commitment confirmed in law,” but fail to acknowledge its importance not just for parents but for all married couples. These views about the telos of marriage are clearly based in religious doctrines that many of us, including myself, do not share. Fortunately, our Constitution protects us from the imposition of religious beliefs in matters such as these.

You sneer at Judge Walker’s findings of fact, but are you aware that the defense was unable to offer any facts whatsoever? As David Boies (attorney for the plaintiffs) put it, “The other side didn’t have any precedent. It didn’t have any facts. It didn’t have any evidence. All it had was a bumper sticker.” Boies and Olson offered an abundance of evidence that (1) marriage is a fundamental right, (2) depriving gays and lesbians of the right to marry seriously harms them and the children they are raising, and (3) allowing gays and lesbians to marry cannot in any way harm the institution of marriage or anyone’s ability to marry. Judge Walker’s findings of fact are impressive by any standard.

Regarding your remarks about “animus,” it is indeed possible that “generations of reflection, running back to the ancients,” might be nothing more than animus. How many thousands of years have India’s untouchables suffered under a caste system supported by “generations of reflection” on the part of the other castes? Prejudice and bigotry are not vindicated by deep historical roots.

You write, “Walker simply rules out the notion that there may have been reasons for turning away from the homosexual life.” My impression from having read his decision is that he ruled out this notion because no evidence was presented to support it. I’ve had this discussion with Catholics for many years, and not one of them has yet shared any such evidence with me, so I am not surprised that the defense couldn’t come up with anything.

You worry that the people of California have been deprived of “the freedom to deliberate and vote on a matter of moral significance.” Well, you don’t need to worry, because Judge Walker’s decision did not affect the process for ballot initiatives in CA. His decision was a reminder that under our Constitutional system of government, majorities may not deprive minorities of their fundamental rights through a simple vote.
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written by Darel, August 19, 2010
The liberals on the Court are adherents to an ethical position called "emotivism," aka the "hurrah/boo theory" of morality which essentially states that saying X is 'good' is no more than saying 'hurrah for X' and likewise saying X is 'bad' is no more than saying 'boo for X'.

For a skilled destruction of this position and its consequences, see Alisdair MacIntyre, After Virtue (1984).
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written by equalszee, August 20, 2010
When the supreme court unanimously legalized inter-racial marriage 70% of the country was against it. As a matter of judicial precedent, questions of constitutional right cannot be decided by simple majority vote. Quite often the majority is wrong, not from a "liberal" or "activist" perspective, as some commentators suggest, but from a constitutional perspective. This is not relativism, it is exactly the opposite; cut and dry, right and wrong, constitutional black and white.

What interests me more than the case, however, is the suggestion that if only a "reason" had been given then the court wouldn't have overturned the law. You imply that "reason" enough is the ability to beget children. So then should heterosexual couples who marry with the mutual understanding that they will never have children, be forbidden from marriage because the purpose of their union does not meet YOUR criteria for what defines a marriage?
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written by Doughlas Remy, August 20, 2010
In trying to understand Hadley Arkes’ narrow view of the “telos” of marriage, I decided to listen to what Maggie Gallagher, President of the National Organization for Marriage, had to say about it. She was in a podcast debate on 1/15/10 with David Boies, one of the attorneys representing the plaintiffs in the Prop 8 case. (You’ll find it on FORA-TV.)

One of her main concerns was that legalized same-sex marriage (SSM) would lead to a devaluation of the ideal of marriage that between a man and a woman for purposes of procreation and nurturance of the young—the ideal that Arkes also supports. If SSM were legalized throughout the country, she predicted, those who believe in the sanctity of the “traditional” model (or at least the recently traditional one) would face ostracism and be labeled “bigots.” Heterosexuals might shy away from commitment under such an oppressive regime, thus leading to a higher incidence of out-of-wedlock births, single parenting, and all the other ills of a society that does not value marriage.

This is a very fanciful scenario. There is no evidence that anything like this has occurred in countries where SSM has been legalized. While it is true that heterosexual marriage is in decline in some of these countries, there is no evidence that the declines were caused by SSM. Declines have also occurred in countries that do not allow SSM. Marriage as an institution can only be made more robust by allowing more couples to make solemn commitments to each other.

Maggie says she has never heard a gay man or lesbian admit that marriage between one man and one woman for the purpose of procreation and nurturance of children is “the ideal.” Of course they haven’t, because the word “ideal” suggests a state that everyone should try to achieve. Is she suggesting that gay men should marry women and raise families? The word “ideal” is much too loaded to be used in this discussion unless we acknowledge that different ideals may be appropriate for different groups. Maybe Maggie’s marriage is an ideal for heterosexuals, but it cannot logically be one for homosexuals.

If there is a marriage “ideal” for homosexuals, it is a loving commitment between two adult individuals who will in some cases enlarge the circle of their love and commitment to include children.

And what of the children? What is ideal for them? Is Maggie’s “traditional” marriage the optimal scenario for bringing children into the world?

That might have been a no-brainer until about a month ago, when the American Journal of Pediatrics published the results of a U.S. national longitudinal study measuring the psychological adjustment of 17-year-old adolescents raised by lesbian couples.

Yep. You guessed it. Lesbians actually make better parents. So my advice to Hadley Arkes and Maggie Gallagher would be, “Back to the drawing board.” If the Prop 8 case goes to the Supremes, you’re going to need some better arguments.
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written by Michael, August 21, 2010
The great French jurist and author of the leading commentary on the Code Civil, Carbonnier asked, “What is the state’s interest in marriage? Why does marriage exist, as a legal institution?”

In order to answer this question, he examined the Code itself and how it deals with cohabitation, PACS (civil unions, same-sex or opposite-sex) and marriage respectively.

His conclusion: « le cœur du mariage, ce n'est pas le couple, c'est la présomption de paternité ». [“The heart of marriage is not the couple, but the presumption of paternity.”]

In other words, the institution of marriage entails consequences with respect to filiation that the other forms of union do not. Moreover, this leading jurist could find no other significant difference at all, in the laws governing cohabitation and civil unions on the one hand and marriage on the other and no-one has been able to suggest an alternative reading of the texts themselves.

This suggests that legal concept of marriage is, in its nature, gender-specific and, also, that it is solely concerned with the status of children and their parents.
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written by Doughlas Remy, August 21, 2010
Michael, Jean Carbonnier’s understanding of marriage under the French Code Civil is just one more example of how protean the concept of marriage has been across cultures and throughout history. Proponents of same-sex marriage (SSM) are often accused of trying to change the definition of marriage, but there has in fact been little agreement about what that definition is. Where Carbonnier’s distillation emphasizes paternity, earlier conceptions might have stressed property. Today, ten countries define marriage as a legally recognized union between two consenting adults, regardless of their gender or their intentions about procreation. The liberal democracies seem to be moving toward an expanded and much more inclusive idea of the institution—one that encourages loving commitment between two people for whatever purposes are meaningful to them. Young people may marry because they want to spend their lives together and conceive children. People past child-bearing age may marry for companionship, for security in their twilight years, or simply because they are madly and passionately in love with each other and want recognition of their bond. It is not the business of the state to tell anyone that their reasons for marriage are unacceptable unless some harm might result from the marriage.
The idea that marriage is uniquely for procreation is basically a religious one, as is the idea that only oppositely gendered people should marry. Those who have such views are free to marry accordingly. However, our Constitution’s disestablishment clause protects the rest of us from having that idea imposed on us. Judge Walker understood that the more restrictive definition of marriage enshrined in the California constitution by Prop 8 was based in religious belief, and he correctly determined that the state of California had no compelling interest in upholding it. Never mind that voters had approved it. It violated the equal protection and due process clauses of the 14th Amendment to the US Constitution.
In the national debate we’re having about SSM, the view that procreation is the telos of marriage will never have legs. Marriage has already gone way beyond that point, and there’s no going back. Millions of Americans marry for companionship, for love, for security, for the raising of adopted or step children, and for many combinations of the above. The definition of marriage has already changed so much that Carbonnier’s more restrictive view of it would probably seem pretty radical to most Americans.
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written by Michael, August 22, 2010
Doughlas Remy: Thank you for your observations.
Carbonnier's analysis had to address the differences between the two legal régimes of marriage on the one hand and civil unions (PACS)on the other (as well as unregulated cohabitation)and to extract a principle from them.
He argues, very convincingly, in my submission, that the presumption of filiation is the cardinal difference and all others can be subsumed under this principle.
Does this mean that procreation is the end or purpose of marriage? No, it simply means that the state has a clear interest in the filiation of children being clear, certain and incontestable. It is central to its concern for the upbringing and welfare of the child, for protecting rights and enforcing obligations between family members and for an orderly succession to property. To date, no better, simpler and less intrusive means have been found for ensuring, as far as possible, that the legal, biological and social realities of parenthood coincide. And that is no small thing.
It is significant that, in a country so committed to the principle of laïcité as France, no one has suggested that Carbonnier's views are either the result of religious convictions or an attempt to import them into his interpretation of the Code.
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written by Doughlas Remy, August 22, 2010
Michael: If all that is meant by “presumption of paternity” is that the state has a “clear interest in the filiation of children being clear, certain, and incontestable,” then neither I nor any other advocate of same-sex marriage should have any issue with it. We can all agree that the state has a role to play in assuring that children are properly cared for and that they benefit from an orderly succession to property. But homosexual couples may have children by adoption, by previous marriage, by artificial insemination, or by use of surrogates, so I fail to see how Carbonnier’s concept of marriage is therefore gender-specific, as you claimed in your earlier comment.

The only couples that Carbonnier’s scheme would appear to exclude are ones that have either no possibility or no intention of having children. But these couples also need protection of the state in matters of property distribution where there is a separation or a death. Does Carbonnier think the state has no role to play in such matters, or does he simply create a special category for these couples (e.g., “civil unions”)? Is that is so, then it is for the people of France to decide if they like the nomenclature. I don’t think it would be very acceptable in this country, whether because we are more egalitarian or because we just never cared for unnecessary distinctions.

So far, I don’t see anything in Carbonnier’s analysis that should preclude the state’s treating a same-sex union exactly the same as an opposite-sex one. What is the difference, other than the gender pairings of the couples? And what is the state’s compelling interest in regulating that? Should only the pairing that has the best record of raising children be allowed to marry? Well, then only lesbians will qualify, and the opposite-sex couples may have to settle for something like “civil unions.”

I think what Judge Walker’s opinion did was to strip away all the pretense that there is any rational basis for the ban on same-sex marriage. What it all comes down to is prejudice, privilege, and fear of change.
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written by Michael, August 23, 2010
"Does Carbonnier think the state has no role to play in such matters, or does he simply create a special category for these couples (e.g., “civil unions”)?"
No, Carbonnier is proposing nothing, he is analysing the situation, as it exists. Civil unions (PACS) already exist and are available to all couples, whether of the same or of different sexes. He is pointing out what is unique to and distinctive of marriage, in contrast to PACS and unregulated cohabitation. This he finds in the «présomption de paternité.»
Now, there is no place for this presumption, between parties of the same sex, rendering marriage gender- specific, in a way that PACS are not.
Once (legal) filiation is constituted, the rights and duties of parents and shildren are identical in all cases, so there is nothing distinctive about marriage in this regard.
Paulus was, I suppose a closet Christian (or Jew?), when he wrote «Pater est is quem iustae nuptiae demonstrant,» a maxim that has found its way into every civil code in Europe.
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written by Randy E King, August 23, 2010
In Loving v Virginia SCOTUS opined:

Marriage is a fundamental right; our very existence and survival is dependant upon it.

Nobody in their right mind could ever claim that our very existence was dependant on perverts rubbing their reproductive organs against each other.

In response to those making the ridiculous assertion that our religions beliefs have not been assaulted by Walker's ruling of "fact":

Religion is deemed immutable under the U.S. Constitution thanks to the 1st Amendment. People of faith can no sooner abandon their support for the traditional definition of marriage then they could stop using their opposing thumbs, but this one man declared in a court of law that the immutability of religion is irrational - i.e. the 1st amendment is irrational.

In 2006 the 8th circuit opined:

1) There is no constitutional right to same sex marriage

2) Procreation is a rational basis

The plaintiffs appealed this ruling to SCOTUS and were turned away at the door because they did not present a constitutional question.

In Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982), this Court interpreted “spouse” in a federal immigration provision to exclude partners in a purported same-sex marriage, and squarely held that “Congress’s decision to confer spouse status … only upon the parties to heterosexual marriages has a rational basis and therefore comports with the due process clause and its equal protection requirements.” Id. at 1042. This binding decision likewise forecloses Plaintiffs’ claims.

In effect, Congress has determined that preferential status is not warranted for the spouses of homosexual marriages. Perhaps 1043*1043 this is because homosexual marriages never produce offspring, because they are not recognized in most, if in any, of the states, or because they violate traditional and often prevailing societal mores. In any event, having found that Congress rationally intended to deny preferential status to the spouses of such marriages, we need not further "probe and test the justifications for the legislative decision." Id. at 799, 97 S.Ct. at 1481.
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written by Doughlas Remy, August 23, 2010
Randy, there’s really nothing to fear from Judge Walker’s ruling. There is no danger that the human race will disappear because of it, that everyone will become gay and refuse to have babies, or that Californians will be denied the right to marry a person of the opposite sex. The ruling does not adversely affect citizens of California in any way whatsoever.

Californians who oppose SSM on religious grounds may continue to do so. There has been no abridgment of religious freedom or freedom of conscience. No ministers will be forced to perform ceremonies for same-sex couples. Gay couples will not receive any sort of preferential status.

Judge Walker’s ruling reaffirmed our First Amendment’s disestablishment of religion. Walker found no grounds other than religious ones for denying gays and lesbians the same rights (under the Equal Protection clause) as everyone else. He could find no compelling reason why the State of California should be allowed to discriminate against homosexuals in its marriage laws.

The First Amendment doesn’t say anything about the “immutability” of religion. Rather, it prohibits the making of any law respecting an establishment of religion or impeding the free exercise of religion.

Californians may continue to exercise their religion in (almost) any way they see fit as long as they do not seek to use government agency to impose that religion on others.
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written by Randy E King, August 23, 2010
The right of conscience and the free exercise thereof as enshrined in the 1st amendment of the U.S. constitution guarantees that I not only have the right to vote my conscience, but that my vote will be counted as equal to all the other votes regardless of race, gender, or religion - the three groups guaranteed immutable protection under the U.S. constitution.

Note: perversion is not an immutable characteristic under the U.S. constitution. The government can not dictate religion; which includes the religion of ignorance practiced by same sex enthusiasts.

This will be the best security for maintaining our liberties. A nation of well-informed men who have been taught to know and prize the rights which God has given them cannot be enslaved. It is in the religion of ignorance that tyranny begins. Freedom is not a gift bestowed upon us by other men, but a right that belongs to us by the laws of God and nature.

Benjamin Franklin

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