April 24, 2004
Ceding the Last Battle
In a comment to a post on Tuesday, reader Fitz asks:
I would submit - concerning the general flow of this conversation - that the gay "marriage" battle is really the last battle in the culture war.By that I mean - to lose this engagement is to answer many of the questions we struggle with.
To lose this battle is to presuppose a disengagement with the culture at large. This will dispirit the troops concerning coming battles over the "right" to die, legalized prostitution, abortion, educational implementation of the liberal agenda, etc.
Furthermore - losing this battle will cement the idea of permissible judicial supremacy over our most important moral battles. This will encourage our robed masters and their new class supporter's - giving them carte blanche to implement their agenda further (really, who will oppose them after this huge defeat).
In many ways they have already won - The lack of outrage amongst the legal elites in calling biology and reproduction "No rational basis" is indicative of their supremacy amongst the ruling class.
My question to you Mr. Katz is - Do you disagree with my thesis? and if the answer is No, then why are you (and the rest of us) not throwing all our efforts behind opposing this latest front? (or are you?)
The first thing to note is that I spend more time than I have to spare discussing, researching, thinking, and writing about same sex marriage. And that, ultimately, is where I've assessed that I can personally do the most good. I can't answer for others in their own judgments about how much to do and in what way. Whatever the case for any particular individual, it must be said that it ain't easy to take a stand. I'm pretty sure I've lost some friends and professional good will as a result of mine. But that's how it goes.
Be my personal sacrifices what they may, taking incrementally broader views leave plenty of room for hope no matter the outcome with this issue. Over the past half-decade or so, folks have been starting to wake up to what has been lost in our culture's rush from traditional principles and practices — and to the need to defend it. The fight over same-sex marriage, in that context, is a battle at the turning point.
If traditionalists lose it, it may prove to have been a parting victory for the abating zeitgeist — a final bit of havoc wreaked by the defeated ethos. Recovery will be more difficult as a result, but not impossible. An optimist might suggest that, given the nature of the trend that we, for our part, are encouraging, the extra work might ultimately be for the good.
In its legal aspect, defeat needn't mean that the judiciary will not face ever-increasing hostilities in its bids for power. The fact of the matter is that the citizenry hasn't really begun to push back against the robed oligarchs. As that poll of Evangelicals illustrates (properly read — ahem), many people who oppose changing the definition of marriage do not fully appreciate the forces at play. Furthermore, SSM advocates such as Andrew Sullivan have devoted a sizable portion of their efforts to declaring that nothing in the law or legal system will nationalize SSM if the people don't want it. Their reactions when they are proven wrong (as I suspect they know they will be), and just the fact of their being proven wrong, will help to cut through the obfuscations that loosen the judiciary's leash, such as carefully spun federalist rhetoric.
Abortion, by way of comparison, came during a completely different era, legally and culturally. It may very well be that the two issues, if SSM is nationalized by the courts, bookend the period of people's tolerance for this sort of behavior from that branch. For one thing, a much broader segment of society was implicated in Roe v. Wade, particularly as time went on. After-the-fact resistance to same-sex marriage will not force citizens to face the question of whether they murdered their offspring, or advocated for the ability of others to do so.
In its cultural aspect, the war is not lost because there are other theaters in which to fight it. Fitz gets to the real variable, however, when he mentions morale. We ought to hold out hope, should this legal battle be lost, that it is possible to use the caused turbulence to strengthen other aspects of marriage. A successful reaffirmation of the lifetime commitment and of monogamy in the culture and (preferably) in the law would limit the ill effects of same-sex marriage, and might even provide an opening for society to transform the social understanding of homosexuality.
The outcome, under any circumstances, is far from certain. Still, we can take comfort in the observation that these things run in cycles. As I've stated before, such principles as those crystallized in traditional marriage seem to have a way of coming around again, even if it must occur after our society as currently constituted collapses.
And even if this is the last cycle... well, I'm a Christian believer, and therefore, even pessimism about particulars can be a source of optimism.
Posted by Justin Katz at April 24, 2004 6:22 PMMarriage & Family
Thank you Mr. Katz, for answering my post with such candor and insight.
I know that your efforts are greater than most, and I have commented before on how your analysis of the issue is some of the best I have seen on the web. All those of good will, applaud your hard work.
As an Attorney I have a window on the legal community. The law schools of this nation have yet to register a organized opposition. (and indeed seem to be mostly on board - if only by fiat) This concerns me greatly.
A more pressing problem is the media. The wholesale refusal to give this issue greater context than that of individual rights, is quickly shaping the debate.
As you stated, this is not the same cultural landscape as it was during Roe v Wade. Toward this end, I am encouraged and have what I believe to be a valuable idea.
The most powerful weapon we can bring to bear is the Moynihan Report {On the condition of the Negro family}(Senator - 1964)
Why?- Because it stands for Four propositions.
#1. Marriage and the family are NOT indestructible institutions.
#2. Government is capable of causing such destruction.
#3. The corresponding social ills are widespread, costly, and largely intractable.
#4. The Elites have been more than capable of ignoring such warnings in the past.
My idea would be to send a copy of this report to as many law professors as possible (maybe Judges, reporters ect.) along with perhaps, the Rutgers/YMCA recent report on the family & maybe Stanley Kurtz recent article concerning the effects in Scandinavia.
A title page could be included; something with brevity - "context" or "no rational basis" or the like.
I believe, even among the elites, that the will to resist this exists.
So there it is.. Comments greatly appreciated.
Appreciatively
Patrick John Fitzgerald
The other side is always feeding a lie that if they get what they want now (ie legal recognition of SSM) that's the end.
Of course, it will not be. Already the forces of group marriage are testing the legal waters. Legal recognition of SSM also means that opposition to it can be rolled up with other forms of hate speech. Here Canada is showing advocates of SSM the way to silence the Church.
Posted by: Patrick Sweeney at April 26, 2004 3:28 PMFitz,
Is it the intention of your proposal to change minds or to offer information that will make it easier for law professors who already agree to compile the relevant arguments? If the former, I don't think the delivery of information that they'll already have marked, in their minds, with big red Xs will be very effective. If the latter, you might save yourself effort and money — and perhaps even increase your effectiveness — just to compile Internet links to the relevant pieces and contact the professors with them.
Nonetheless, I should say that I'm inclined to think that there are more law professors against us than for us. I've no especial view into that particular group, though.
Posted by: Justin Katz at April 28, 2004 1:44 PM