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Straw Votes and Revelations Print E-mail
By Hadley Arkes   
Tuesday, 16 August 2011

I was flying back from the Never-Never Land of California when the Republicans were holding their debates for the presidential contenders  in Ames, Iowa. And so I had to rely on the transcript of what was said.

That is always a hazard.  I’m quite certain, for example, that Michelle Bachmann said that Guantanamo was a “tool . . . to prosecute a new type of war,” and not – as the transcript had it – a tool “to prostitute a new type of war.”

But I’m inclined to think that the transcript had it right when it reported Jon Huntsman as saying that he supported “civil unions,” as an alternative to same-sex marriage, “because I think this nation can do a better job when it comes to equality.”   The other Republicans on the stage opposed civil unions for the same reasons they opposed gay-lesbian marriage, and Huntsman was asked why he thought the others had it “wrong.”

I trust the transcript that he did in fact respond:  “That is just my personal belief.  Everyone is entitled to their (sic) personal belief too.”   In other words, his position was based on feelings and beliefs that were just his, personal to himself, not based on any reasons that could be valid for others beyond himself.  And that is the way he would legislate in a political order? He would make laws for other people on the basis of feelings or beliefs that could not be explained and defended with reasons that could command the reasoned assent of others?

I’m sure that the transcript had it right when it found Congressman Ron Paul flailing as usual with a libertarianism that had a comparable trouble in finding its moral ground.   Paul regards marriage as the union of a man and woman, but he insists that marriage is an entirely local matter, that there should be no federal constitutional amendment to protect marriage for people in the separate states.

The questioner relayed Rick Santorum’s challenge: Would Paul have no objection then if a state brought back polygamy?   As Paul sought to respond to the challenge, his libertarian passion worked to peel back the laws altogether and leave people free to honor their own sense of  “marriage,” whatever it may be:

[R]eally, why do we have to have a license to get married?  Why don't we just go to the church?  What other individuals do, why can't we permit them to do whatever they call it that is their problem not mine.  Just so nobody else forces their definition of marriage on you. 

It fell to Rick Santorum draw the simple upshot of this winding around the libertarian pole:  “Representative Paul would actually say [then that] polygamous marriages are OK.  If the state has the right to do it, they have the right to do it.”   In a curious trick-the-eye, Rep. Paul along with others, somehow fails to notice that the federal courts are part of the federal government.  The federal government can be kept out of the issue of marriage only if the federal courts could stop taking cases invoking the Constitution, to challenge the laws on marriage within the states.

But the issue is “federalized” when litigants invoke the Full Faith and Credit Clause (Art. IV, Sec. 1) to compel Arkansas to honor the same-sex marriage performed in Massachusetts.  Or when litigants invoke the “liberty” clause of the Fourteenth Amendment, or the “equal protection of the laws,” in order to insist that couples of the same sex be accorded an “equal right” to marry.

Gov. Huntsman seems unaware that the same concern he raises about “equality” is being raised now in the courts, not merely to install civil unions, but to install same-sex marriage, the union he professes to oppose, for reasons he cannot quite explain.  Nor does he seem remotely aware that the presence of civil unions has merely given courts the ground for imposing same-sex marriage:  As the argument runs,  the law is providing, with civil unions, the substance of marital rights and privileges while withholding the label – and the moral recognition. Hence, the judges conclude, we have an invidious discrimination.

Senator Santorum was asked, in another phase of the questioning, just why he does not go along with the public sentiment that accepts abortion in cases of rape and incest.   Santorum responded that “the Supreme Court of the United States on a recent case said that a man who committed rape could not be killed, could not be subject to the death penalty, yet the child conceived as a result of that rape could be. . . . That child did nothing wrong.” 

There is far more to be said of course in explaining how the pro-life movement could make an accommodation, in prudence, with the passions of the public, while refusing to endorse in principle the abortions in these cases.   It is an argument that even conservatives need to have explained.

The thing worth remarking here is that only Santorum, among the candidates, has been willing even to begin explaining it to them.   Say what you will in reckoning Santorum’s chances.  But it is a mark of the current condition of our politics that the candidate most clearheaded about the moral grounds of the law, on marriage and abortion, should be so discounted, even so early in the game, by those who should be his allies.

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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Comments (11)Add Comment
written by Bangwell Putt, August 16, 2011
I pay careful attention to the writing of Professor Arkes. He is a great teacher. I hope he will consider amplifying his thinking on "an accommodation in prudence with the passions of the public".
written by Michael Paterson-Seymour, August 16, 2011
It is worth noting that the two highest courts in France rejected the equality claim for SSM precisely because the only difference between marriage and civil unions (PACS, available to couples regardless of gender) is the rule that "the child conceived or born in marriage has the husband for father." (Article 312 C Civ)which is obviously gender-specific.

Their argument, very briefly, was (1) Mandatory civil marriage, makes the institution a pillar of the secular [laïque] Republic, standing clear of the religious sacrament (2) The institution of republican marriage is inconceivable, absent the idea of filiation, enshrined, not in Church dogma, but in the Civil Code (3) The sex difference is central to filiation.

No one ventured the ludicrous argument that questions of civil status, such as paternity, can somehow be "privatised."
written by Bob Servilio, August 16, 2011
Mr. Arkes says it all in that last paragraph. Santorum has been willing to charge forthrightly into moral battles while most of the other candidates hunker down in the fox holes. It's not just the social issues, either. In every opinion he expresses, one hears a foundational moral truth undergirding it. And yet, as a former D.C. lawmaker, he knows you can't always get the purest solution, hence Arkes' "accommodation in prudence".

I don't think the GOP understands the gem it has in Santorum. If he doesn't make it through this vetting process, it would nonetheless be prudent for the winner to find a prominent place on his or her team for this wise young man.
written by Grump, August 16, 2011
Ah, California, a nice place to live if you're an orange, as Fred Allen once said.

Hadley, you left out Perry, the presumed front-runner according to some, who famously said, "That's fine with me," when asked about so-called gay marriage, suggesting that whatever a state wants to do is OK with him.

The polygamy argument can be extended to ridiculous lengths such as marrying one's mother (after all, we love each other), to marrying one's dog (trust me, he consents) to marrying a tree (after all, I love to hug her).

That the topic of traditional marriage -- one man/one woman -- is up for "debate" is yet another sign of decaying Western civilization.

Surely, a generation or two ago, no one in his or her right mind would accept the idea of same-sex couples "marrying" but now it's considered arguable on at least "legal" grounds. Morality, as usual, takes a back seat in the public square.

written by Ken Colston, August 16, 2011
Mr. Arkes, who ought to be a Supreme Court nominee sometime for his acuity, opens the door to abortion in cases of rape as a prudential accommodation to the passions of the public. Isn't this accommodation dangerously similar to legislating on the grounds of personal belief?
written by Ken Colston, August 16, 2011
Isn't opening a crack in the door to abortion as a prudential accommodation to the passions of the public dangerously similar to legislating from personal belief?
written by Hadley Arkes, August 16, 2011
Mr. Patterson-Seymour brings some vastly interesting news and shows, again, the deep value that may come along, for the writer as well as the readers, in these possibilities for the readers to offer comments in a timely way. I’d be intensely interested in hearing more, and I wonder if he has any citations he could send along.

Messrs. Putt and Colston ask me to say more about this matter of a “prudential accommodation,” and so it may indeed be worth saying far more in another column. I was rather taken aback recently when a figure of some standing among conservatives expressed deep surprise that I would not accept the rightness of abortion in cases of incest and rape. He had trouble even grasping the case for classic prudence here: As Aquinas—and Lincoln—recognized, statesmen at times are compelled to make an accommodation with an evil for the sake of compressing or limiting that evil. In the case of Lincoln, it was the evil of slavery. One may have put up with certain things that the public will not see removed. At those moments it becomes critical that one avoid any endorsement at all in principle, and that one seeks ways of limiting or confining the evil. At the same time, one actively builds the understanding in which that evil could be seen, more and more, as the evil it is. It was telling, I thought, that this conservative friend was faintly disturbed by my unwillingness to endorse abortion in these cases. Once again, that critical holding back from a moral acceptance or endorsement is felt quite keenly. On all of this, more later.
written by Manfred, August 16, 2011
Thank you again, Dr. Arkes. I have a more non-specific question: can a trained,educated, practicing Roman Catholic really possess any interest in this country? I seem to be "arguing" with almost everyone with whom I discuss affairs. Take the Catholic support for same sex marriage as a "civil right". If para #2357 of the C.C.C. says in its last sentence that under no circumstance can homosexual behavior ever be approved, that should conclude the discussion; but instead it goes interminably on.
written by Michael Paterson-Seymour, August 17, 2011
Prof Arkes

The French case is usually referred to as the Bègles case, from the name of the town where the mayor celebrated a marriage for two men. The Procurator-General sought a decree of Nullity The TGI (Court of first instance), the Court of Appeal, the Court of Cassation and the Constitutional Council unanimously rejected a right to SSM

The judgement of the highest court, the Court of Cassation was pronounced on 13 March 2007

The case then went to the Constitutional Council, which is the Supreme Court for constitutional cases.

Check the Commentaire aux Cahiers for a very valuable commentary on the rather brief (by Anglo-American standards) judgment.

A good discussion of the case (in English) can be found in the Pécresse report on Marriage and the Family to the National Assembly, dated 25 January 2006, after the first appeal.
This report also quotes the great French jurist Carbonnier “The heart of a marriage is not the couple, but the presumption of paternity.”

This was echoed in a report of the French Senate
"Preserving the presumption " is est pater quem nuptiae demonstrant ", [Dig. 2, 4, 5; 1] adopted in all European legislation as Ms. Frédérique Granet-Lambrechts, professor at the Robert Schuman University of Strasbourg, told your reporter, Article 312 of Civil Code provides that a child conceived or born during the marriage has the husband for its father.
The presumption of paternity of the husband rests on the obligation of fidelity between spouses and reflects the commitment made by the husband during the celebration of marriage, to raise the couple's children. The report presenting the order to the President of the Republic rightly points out that " it is, in the words of Dean Carbonnier, the ‘heart of marriage,’ and cannot be questioned without losing for this institution its meaning and value."" [My translation]

It is significant that, in a country so committed to the principle of laïcité as France, no one has suggested that Carbonnier's views, or those of the Courts are either the result of religious convictions or an attempt to import them into his interpretation of the Code.

I apologize for the length of this post, but I trust you and your readers may find it useful
written by Howard, August 17, 2011
Arkes would perhaps have a point if we were under a moral obligation to support whatever the Republican Party chooses to dish up. Santorum is talking a good game at this stage in the primaries -- when his words have no effect except on himself. It's a poor politician who can't say the right things to people whose votes or money he wants. However, we know more about Santorum than what he said at the straw poll; we know his record of past actions. This is what Arkes so desperately wants us to forget. It's the same strategy Romney is using -- don't look at my record, listen to my recent speech!

When you vote for the lesser evil, you are voting for evil.
written by Michael Paterson-Seymour, August 17, 2011
Prof Arkes

I tried to include links in my previous post
One can find the Court of Cassation's judgment on Juritel, the case is Stéphane C. et Bertrand Z. c/ Procureur de la république de Bordeaux

The Constitutional Council's decision can be found on the Conseil Constitutionnel website [Décision n° 2010-92 QPC du 28 janvier 2011]

An English version of the the Pécresse report can be found on the Preserve Marriage website

The Senate's report can be found on its website Bienvenue au Sénat under Rapports Législatifs

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