I don’t have time for an ordinary post at the moment, but I wanted to note a few things I had seen that relate to topics discussed here lately. First, for anyone who would like some corroboration of my musings about the mental aspects of homosexuality, see this excellent post by philosophy professor Christopher O. Tollefsen.
If you were wondering whether my two posts addressing why marriage laws do not discriminate based on sex have any continuing relevance, read this post about how the Equal Employment Opportunity Commission (EEOC) last week ruled in a 3-2 decision that discrimination against homosexuals in the workplace constitutes sex discrimination under Title VII of the 1964 Civil Rights Act. Explaining how marriage laws do not discriminate based on sex is somewhat tricky — hence the two posts — but the reason discrimination against homosexuals in the workplace does not constitute sex discrimination is absurdly simple. When an employer discriminates against an employee because he or she is homosexual the discrimination is occurring because of the person’s sexual orientation, not because that person is a man or a woman. Yes, this is so simple that it really should not have to be written down, but the Democratic appointees to the EEOC don’t care about that. All they care about is being able to use the Civil Rights Act to prohibit discrimination against homosexuals despite the fact that Congress has repeatedly rejected legislation designed to do exactly that. Due to Congress’s failures in this regard, courts have quite logically concluded that the Civil Rights Act does not cover sexual orientation discrimination. A minor quibble for the EEOC. After all, if marriage can be redefined as a constitutional matter to mean something it has not meant for millennia, then why can’t the EEOC simply declare that sexual orientation discrimination is, in fact, sex discrimination? And yes, the two decisions are obviously related. The timing is no coincidence: there is no way the EEOC comes out with this decision without Obergefell being decided the way it was.
In saying all of that, I should not have to note (but will out of an abundance of caution) that I am not advocating discrimination in the workplace against homosexuals because of their orientation. This would be no more appropriate than discriminating against an employee because he or she is heterosexual. Of course, the caveat would be religious employers, who ought to be able to discriminate on such a basis, just as they are allowed to discriminate on several other bases, like specific religious belief or marital status,, that ordinary employers are not permitted to do. I am simply pointing out that there is no federal legislation prohibiting sexual orientation discrimination despite the EEOC’s fanciful claim to the contrary. As absurd as the EEOC’s decision is, as the post linked above observes, it carries serious and potentially widespread legal ramifications.
Here is a poll on what people think of same-sex “marriage” in the wake of the Obergefell decision. To say that the numbers are surprising would be an understatement, especially given that we were repeatedly told before the decision came down that a majority — even a super-majority — of Americans supported the idea. It indicates not only that the country is evenly split on the issue, but that 30 percent of the people are undecided about it. Obergefell did not settle the issue as some would like people to believe. It is also somewhat heartening that a majority still support religious freedom because that will become an area of frequent litigation.
Still, if the poll is accurate, it raises serious questions about the coverage of this issue. The AP can be given a little credit for ordering the poll, but I suspect they did so because they expected much different numbers. After they published the results, you would have expected to see some analysis about it, but as this post observers, the mainstream media decided the best thing to to was to draw as little attention to it as possible. After all, who cares what the people think now that the radical social agenda is a reality?
On the same blog as the Tollefsen post is a detailed post by political science professor Christopher Wolfe regarding the definition of marriage. The whole post is worth taking the time to read, but I found particularly helpful his discussion of the fact that marriages often do not live up to the paradigm case definition precisely because people, and the world in general, are fallen. As Wolfe observes, one does not base a definition upon such exceptions, and this is why the mere fact that there are divorces does not mean that marriage is not defined by life-long commitment, or the fact that some couples end up not having children (either because of medical difficulties or by choice) does not mean that procreation is not integral to the definition of the term. The Obergefell majority eliminated certain characteristics of marriage from its definition in order to avoid the conclusion that marriage is inherently an opposite-sex relationship, but it could only do so by ignore this basic rule of logic about paradigm cases.
My only quibble with Wolfe concerns the first “key feature” of his definition of marriage:
“Marriage is a formal social-legal bond, recognized by society. This public bond has the effect of creating legal obligations and rights between husband and wife, parent and child, and family and community. This recognition is necessary for the stability of the union, especially for the benefit of any children the marriage produces, but also for the benefit of the spouses.”
I question whether civil/legal recognition a necessary component of the definition of marriage. Obviously, there is one easy sense in which it is not: God does not need civil recognition to know whether two people are married or to hold them morally accountable for their actions in such a relationship. But human beings cannot see all that God sees, so we need visible signs of people’s commitments. Therefore, it seems apparent thaT Wolfe is not discussing a religious definition of marriage.
As Wolfe himself observes, however, “[m]arriage is not a conventional arrangement that society defines for itself. It is ‘pre-political’—it has a nature that is independent of human desires, beyond the reach of human modification. ” It would seem, by definition, that a pre-political institution does not require formal civil/legal recognition. But in a sense this would be a misunderstanding of why something is considered “pre-political”: it is because it is absolutely necessary for proper social function. In other words, a good government is supposed to respect pre-political rights and institutions because they are inherent to the human condition. In fact, one way we distinguish good governments from poor ones is whether they respect such pre-political rights and institutions. Indeed, the whole point of the second paragraph of the Declaration of Independence is to state the case that the British Crown had not respected the inalienable rights of the colonists. Present-day governments like those in China and Iran do not respect a number of the pre-political rights and institutions of their people. This does not mean that Chinese and Iranian people do not have such rights; those governments cannot take those rights away precisely because they are inalienable or “pre-political.” It just means that the people are being deprived of the ability to exercise those rights by their bad governments. Thus, good government has to respect marriage because of its pre-political nature.
What Wolfe does not fully explicate is what he means by “a formal social-legal bond, recognized by society.” If he means something like a marriage license (for opposite-sex couples), then it would seem that in part he agrees with Justice Kennedy’s understanding in Obergefell. After all, the Obergefell majority concluded that states are constitutionally required to provide marriage licenses to homosexual couples who seek such recognition. I would have to part company with Wolfe to this extent — if that is what he means — because ordinarily government “recognizes” pre-political rights and institutions simply by not interfering with them rather than by public provision of them.
Of course, this is what Justice Thomas was talking about in his Obergefell dissent when he explained the distinction between “negative” liberty and “positive” liberty. The Founders understood constitutional “liberty” to be freedom from government interference, not government aid in the exercise of a right. For example, the government “recognizes” free speech simply by not inhibiting a person from speaking his or her mind (on political subjects if we are going with the original understanding). In the same way, good government has a responsibility not to interfere with the marriage relationship and things that flow from it such as child-rearing and education of children.
It does not automatically follow, however, that government must “recognize” marriage in the sense of publicly endorsing it through a licensing scheme. Granted, sound policy arguments can be made for formal recognition: children benefit from such legal recognition and spouses probably take a measure of reassurance (not to mention certain legal benefits) from it as well. These benefits are undoubtedly why some form of licensing has been a feature of state laws for a very long time, but one must be careful not to confuse good public policy with the inherent qualities of a right or institution. In short, government encouragement of (traditional) marriage is good public policy but it is not a necessary component of the definition of marriage.
In another post, I explained why marriage is a natural right but it is not a federal constitutional right. The distinction between a public policy and inherent nature constitutes another reason why natural law is relevant to evaluating the Obergefell decision. The Obergefell majority turned marriage into, as Wolfe puts it, “a conventional arrangement that society defines for itself,” rather than recognizing its nature and the fact that the Constitution does not countenance interference with it. If marriage is nothing more than a social construct created by its formal legal recognition — like a driver’s license or social security benefits — then who is to say that Justice Kennedy’s opinion got the definition of marriage wrong?
Granted, Justice Kennedy would still be wrong that the Supreme Court is the body who gets to set the definition of marriage, but that is the formal constitutional argument — the “who rules me” argument that Justice Scalia so powerfully made in his Obergefell dissent. That argument, however, could just as easily be made anytime the Supreme Court egregiously misinterprets a law, such as when the Court changed the Obamacare individual mandate into a tax when the text of the law said it is not or when the Court proclaimed that subsidies were meant to be provided to insureds who receive their coverage through the federal exchange when the law clearly stated that such subsidies were only available to state-exchange plans. Laws (and Constitutions) are enacted with certain meanings. When the Supreme Court deliberately changes those meanings to suit its preferences, it becomes our ruler rather than an instrument of law.
But the marriage issue encompasses more than just the constitutional limitations on judicial power precisely because marriage is not based upon a government contrivance. Imagine, for example, if the Obergefell decision had been decreed in China, a nation that lacks our constitutional legacy. How would one go about criticizing the decision? It could not be because authoritarian bodies do not make such decisions for the people; that happens all the time in China. No, the criticism would have to be based upon natural law — standing on the principle that Obergefell’s definition of marriage is contrary to, as Alexander Hamilton put it in Federalist 78, “the nature and reason of the thing.” Thus, the fact that the Obergefell decision does not conform to the historical understanding of the term “liberty” in the U.S. Constitution is derivative of, not fundamental to, the error of Justice Kennedy’s definition. In other words, something beyond constitutional procedure is amiss here: it is nothing short of a reorientation away from an objective moral order. It is that moral order which is the reason the definition of marriage matters and it is the ultimate reason the Supreme Court is wrong in redefining the term into a social construct that does not resemble the nature of things.
Chain of Liberty 
Leave a comment