The Day After

Well, I can't say I'm impressed with the President's statement:

Today's ruling of the Massachusetts Supreme Judicial Court is deeply troubling. Marriage is a sacred institution between a man and a woman. If activist judges insist on re-defining marriage by court order, the only alternative will be the constitutional process. We must do what is legally necessary to defend the sanctity of marriage.

When will we be justified in dropping the "if"? Of course, we already know that "activist" judges will so insist, but when can we declare there to be enough of them? Two states? Three? The twelve (I think) with legislatures that haven't passed DOMAs? The thirteenth? Whenever the issue hits the Supreme Court?

Part of what we're now seeing, I think, is the downside of elected officials. Judges who are appointed needn't fear a public opinion that they may or may not realize exists. Those politicians who put reelection above right have to guess which way public opinion will fall. As Hadley Arkes, who has been fighting this fight since the mid-'90s, points out, the other branches are not without power:

In the meantime, it might be said that the court itself has offered a series of slogans searching for a principle; and yet that may impute too high a reach to Chief Justice Marshall and her colleagues. The judges in the majority were mainly making it clear that they were in charge, and would have nothing less than what they had "invited" the legislature to produce. Those folks seasoned in the legislature must retain some ordinary reflexes found among ordinary human beings, and if they retain at least some minimal self-respect, this gesture of contempt by the court should be enough to push them over the edge. It is not enough to put off for two years a constitutional amendment. There are things to be done even now. The governor seems to be studying again the lessons taught by Lincoln on the limits of the court and the constitutional responsibilities of the political branches. As Lincoln reminded us, the executive and the legislature could respect the disposition of any case in regard to the litigants, but they may not be obliged to accept the principle articulated by the court. The court might issue injunctions to registrars throughout the state, ordering them to give marriage licenses to people of the same sex.

But the constitution of the state is clear that the laws on marriage belong mainly in the domain of the legislature, and the legislature has the decisive authority to determine the terms on which courts may issue injunctions.

For his part, Stanley Kurtz keeps up the point-counterpoint with Andrew Sullivan — with a sometimes futile tenacity and patience that fills me with admiration. This time around, Mr. Kurtz (in addition to linking to me) notes that the Scandinavian experience suggests that the push for gay marriage may have the effect of bringing about all of the harm of which we who oppose it speak, while producing none of the benefits to society that the proponents promise.

Meanwhile, Andrew Sullivan applies to the federalism vs. courts problem a similar strategy to that which characterizes his handling of the promiscuity problem. On the latter count, he has responded to the objection that homosexual inclinations toward monogamy are, at best, unknown by declaring that he, personally, believes that "adultery should be as anathema as it is in heterosexual marriage" (Virtually Normal, 221) — although it's not clear how much "as it is" should be — without reference to those who would necessarily walk through the door with him. Now, he declares that he, personally, would prefer the public debate the issue and come to agreement with him, but if the courts step in and decide that he's right, he wouldn't be in a position to complain.

For another perspective (that agrees with him), Sullivan points to Armed Liberal, who, despite being twice divorced and currently cohabiting, presumes to define the whatfor of marriage. Here's the first and lesser of two areas of error (emphasis in original):

Historically, [marriage] has been tied to sex and procreation - which means heterosexual sex - but that tie is eroding, in the face of the increasing sexualization of society.

Eroding? It's eroded, folks. Paris Hilton may be 'deeply shamed' by the release of her self-made video; but the next celebrity won't be, and soon we'll have migrated celebrity to something like Gibson's character Tally Isham, whose entire life (especially the naughty bits) becomes the subject of a reality show. Soon we'll be just a credit card away from the weekend cavorts of our media stars, whose stardom will be reinforced, not destroyed, by granting us this access.

No, actually, that tie is nowhere near eroded. The tie of marriage to procreation remains strong despite "the increasing sexualization of society." It appears that the issue that A.L. is substituting for the point that he's trying to make is the link between sex and procreation, on which matter I couldn't rationally disagree, but when sex becomes procreative in the U.S., it is almost universally expected to be within marriage.

This confusion of the relationships between sex, procreation, and marriage surely relate to A.L.'s second, more pernicious, error, which might as well be exhibit C in the case of those who argue that gay marriage will further damage the utility of marriage to encourage the healthy raising of children (emphasis added):

It means that I will take care of her, and be taken care of by her in turn, and that in the time where long shadows come over our lives, we won't be alone in facing them. And it has primacy over your other relationships. The act of saying to this person "You are the most important person in my life. Not my children, not my boss, not my pastor or anyone else matters more to me than you do," fundamentally changes both one's life and one's relationships to others.

And there you have it. The feelings of adults are sacred. The kids? They'll adjust.