First, let me say that the USSC’s recent (non-)decision was the correct and logical one, if the only issue was the law and the wording within the Constitution. The choice, you see, was made the moment government made being married a legal matter, hundreds of years ago. That said, however, there are larger things at work, here.
One of the advantages of having a huge library of previous writings on file, is the ability to refer back to those writings and those positions. Saves much in the way of repetitive writing and also, gives you a checkpoint on your own consistency. Back in 2004, I wrote a comment over at Dan Drezner’s place, which addresses some of the issues aside from the law, and the Constitution.
â€œâ€˜A prohibition on homosexual unions wasnâ€™t written into the constitution because such things were assumed, and therefore never legally defined.
Proof of these assumptions is easy enough to find.
It is interesting for example, that Jefferson, (arguably the biggest social liberal of the lot) thought homosexual acts to be worthy of hangingâ€¦ (I commend Fawn Brodieâ€™s Jefferson to your reading list) and yet he never indicated anything of the sort in his â€¦ ourâ€¦ documents.
Clearly, there was some assumptions made on the part of the founders in this areaâ€¦. cultural assumptions.
And here, we walk a legal fine line, I fear.
Government, you see, does not operate inside a cultural vacuum. Rather, it exists inside a cultural context it must not run afoul of, lest it become irrelevant to the people itâ€™s supposed to be governing. Yet, while law and government is a more exact science, culture is less so. And so, codification of the culture is problematic at best.
Given this, Jefferson, and the rest of the founders apparently took the attitude that their best tack would be to write laws and a framework that would at least not run afoul of the existing culture, without specifying without attempting to codify the bounds of that culture.
Dan, I think, is right insofar as such an amendment not passing, because it, unlike the remainder of the constitution, it attempts to define the social boundaries of the culture itâ€™s charged with governing.
But I wonder what it is then, that the culture has to protect itself, in the end, if not government.â€™
This is, it seems to me, the legal vs the cultural. And clearly the founders were making choices based on cultural assumptions. This is today resulting in questions such as Holman W. Jenkins Jr, in the WSJ asks
â€œIf marriage is a mere â€œlegalâ€ right, who canâ€™t get married? If any two people have the right to the legal benefits of marriage, why not three people? Why not two brothers? Why not a man and his father?
Itâ€™s hard to see on what basis marriage could logically be denied to anybody. Right now, the state doesnâ€™t ask if a man and woman are heterosexually inclined, if they love each other, if they intend to have children. Marriage largely regulates itself, with the exception being government efforts to prevent marriages intended solely to obtain a green card. But in the world ordained by the Massachusetts supreme court, wouldnâ€™t the state be obliged to make sure two women who want to get married are really lesbians and not just two women trying to acquire the legal advantages of marriage? How else to stop marriage from becoming a right available to any group of people who simply want to organize their affairs as â€œmarriedâ€ persons?
Right now, the law makes no formal presumption about the sexual orientation of people getting married, just their gender: They have to be of opposite sexes. Yet that small stipulation seems to have succeeded, for the most part, in keeping marriage from becoming a mere contractual convenience. â€
Iâ€™ve already written at some length about all of this, incidental to the Canadian SC ruling last June.(02)
The problem is a bit more basic, even than a religious question in our increasingly secular society. At itâ€™s root, this is a matter of which will triumphâ€¦ law and government, or the culture that created said law and said government. Like it or not, the values being railed against by those seeking to install this travesty, are not simply religious values. They are also deep in the roots of our culture. The implications are simple enough to see, thenâ€¦
Clearly, what we have here as the result of this ruling are more questions than answers. I say again, the issue is what triumphs, government, or the culture that gave it life? Has the monster created to protect the culture, turned on it’s master?
I suggest it has, and it’s because we have entrusted the power of government to those who don’t believe in traditional American culture, who are using the power of government to over-ride and debase that culture. And that is a theme which will continue to pop up in posts I already have in the pipeline.