Tuesday, June 2, 2009

Intellectual Conservatism and Gay Marriage


Here is what I consider to be the intellectual conservative dissection of the gay marriage issue:

Supporting the traditional definition of marriage is neither hateful, bigoted nor ignorant. In fact, the majority (57%) of Americans, to include Barack Obama, happen to agree that a "marriage" is defined as the union of one man and one woman. As a bit of perspective for you liberals, Obama only won the 2008 popular vote by 53% - a margin many liberal publications considered to be a "landslide victory." If Obama won by a "landslide" with just 53% of the vote, what does that say about gay marriage?

But let us look at this issue pragmatically. The Left needs to make it appear as though Conservatives are filled with hate for gays - because they'll have an easier time gathering people to their cause if the legality and constitutionality of the matter stays off the table. Liberals know that the best (if not the only) weapon in their arsenal is their ability to appeal to pathos.

If not for liberal academia's persistent efforts to drum up euphemisms to favorably and continually reshape the way issues are debated, liberalism would have been snuffed out decades ago. It's not as if socialism and liberalism haven't been rejected time and again by the American people - they have! It's just that liberals are quite masterful at repackaging the same crap and presenting it in such a way that Americans forget why they rejected it in the first place.

This issue with gay marriage is no different. You will be hard-pressed to find a liberal who is willing to debate you on the substantive legal issues regarding gay marriage. Instead, you'll hear a lot of violin solos about "everyone deserving equal rights." This, my friends, is the current liberal euphemism for gay marriage. Gay marriage advocates have usurped a state-funded benefit as a "right," irrespective of the state's will to recognize it as such, and then continue to call it a "right" in the arguments which follow, even though there is no standing legal precedent which defines marriage as such.

Before I dive into the legal ramifications and precedent of the issue, I want to lay down a disclaimer. I do not use religious context to frame my political debates. I've no doubt that the founding fathers were religious/ faithful men and that they never intended for Christianity to be treated in the ways that it is today.

But as a philosophy major, I learned that faith is not and cannot be a justification for any empirical and universal argument. This is true for either morality or legality. Attributing the source of your reasoning to something the rest of the population may or may not have faith in is not conducive to creating sound social contracts. Saying "these are inalienable rights because god gave them to us," and saying "there are inalienable rights because we gave them to ourselves," for the nonbelieving population, is essentially the same thing. And because the law applies equally to all, its foundation must be equally applicable to all as well.

I am parting from traditional Conservative dogma when I say this (or at least the explanation outlined in Mark Levin's Liberty and Tyranny), but our inalienable rights come from neither our own positivism nor God. In America, our inalienable rights come from the Constitution of the United States. Those rights which are conferred to U.S. citizens are granted irrespective of that person's religious faith, sexual orientation, gender, race, creed, etc.

Can we say that politicians ought to make every decision without an ounce of moral or religious motivation? Certainly not. It's quite clear that our subjective decisions are framed by our personal value systems. However, the intellectual conservative does not believe in legal positivism and has the utmost respect for our Constitution and the founding principles of our forefathers. The law cannot just be whatever we want it to be in a given circumstance. That would lead to anarchy and tyranny. Conversely, the law ought not be so immobile as to find itself incapable of adapting to modern conflicts.

And so the intellectual conservative must balance the legal foundations laid down by our founders, historical context, legal precedent, and the modern-day empirical knowledge of the issues which face us.

Where does this leave the intellectual conservative on gay marriage?

The intellectual conservative doesn't care what people do in the privacy of their own bedrooms. Conservatives have, historically, advocated people's right to do what they want (within the law). The best conservative arguments don't suggest that gays ought to be kept apart, simply that the state is not legally obligated to recognize their union.

There is a huge, insurmountable "rights" gap here that people with a one-dimensional understanding of the gay marriage issue always fail to grasp. Insofar as a "marriage" is a state-recognized and subsidized status, the people of that state have the right to define it.

It is vitally necessary, from a legal perspective, to distinguish between a benefit and a right. The government gives benefits to thousands of groups without also giving them to others. Couples with children, military veterans, the disabled, the elderly, minorities, etc. all get tax-funded benefits because the people who are funding those benefits have consented to it (or at least refused to adequately object).

When looking at the gay marriage issue, one has to ponder... what is this really all about? Gays can already have any relationship they wish, what they're fighting for here is state-recognized status. Why? They can call themselves "married" until they're blue in the face, why do they need to the state to recognize their union? Because with state-recognition comes state benefits. And here we find the crux of the issue for the intellectual conservative - the reason the intellectual conservative wants gay marriage to be decided state-by-state isn't because he has some vehement hatred for gays, but because he believes that a state's citizens should have the autonomy to decide what they will and will not subsidize.

"Marriage," as it currently functions in American society, is a state-recognized status which yields state-subsidized benefits. Therefore, the intellectual conservative correctly asserts that each state must decide for itself whether it will include gay unions within its classification of "marriage."

But let's follow the gay marriage advocate's arguments to their furthest, logical conclusion. Let's say Perez Hilton decides that he thinks state-funded marital benefits ought to be granted to all gay couples too. Suddenly, our government no longer has legal precedent to give a benefit to one person and not another. People with children could no longer get an additional tax cut over those tax payers without children. People without disabilities would then be guaranteed the same federal funding as the disabled. Rich students would be guaranteed the same federal college aid as poor students. Why? Because government-funded benefits would be considered, under legal precedent, as a "right."

What's the result of this? Well, obviously, the most likely result is government bankruptcy. Or, we would end up with outright socialism, where the government takes 100% of everyone's revenue and then divvies it up equally to everyone. Sounds super, eh comrade?

The fact of the matter is that all sorts of demographics get benefits that others don't. Can you imagine a rich, white, Christian male college student protesting that he's not getting the same federally funded "rights" as his poor black peers? He'd be lambasted!

The simple, conservative solution to the gay marriage issue is to completely separate religious "marriage" from state-recognized unions. Then let each state's citizens vote on what they will and will not recognize as a "civil union" to receive tax-funded benefits. Remove government from religious marriage entirely, and redefine all state-recognized unions as "civil unions," because that's what it means to be a "civil union."

Personally, I think a "marriage" is a union between a man and a woman. That's what the word means; that's what it has always meant. Not a man and a man. Not a woman and a woman. Not three men and two women. Not a man an ape and an elephant. Just one man and one woman. That's what the word means, and it would seem the majority of this country agrees with me (for a change...).

If/when I get to vote on gay marriage again (as I did in 2004 for Georgia in concurrence with 76% of the majority vote) I will vote against it because I think there are better ways to spend my tax money, and I support the traditional definition of marriage. But by the same token, an "intellectual conservative" would accept the opposite decision as part of the democratic process if his state decided to accept same sex unions. That said, this is an issue to be decided by the people, not the courts.

The suggestion that all anti-gay marriage people are bigots or hateful is inherently false. Liberals need to get over the assumption that everyone (except them of course) is a bigot. I don't know how it goes over-looked that conservatives are among the most giving, generous and charitable people on the planet. Yes, there are Christians who feel obligated to force their beliefs on others, but hating all Christians because of a select minority is no different than hating all gays for their role in the spread of HIV; it's ignorant.

Liberals want to permanently link all accounts of conservatism to the far religious right because the Left is convinced it discredits the Right's position. To-date, they're right. I rarely, if ever, hear a conservative talk about gay marriage outside of a religious context. As a result, liberals are afforded the opportunity to side-step the legal and logical flaws in their own arguments and speak only to the emotion of the matter. Instead of discussing the usurpation of state-funded marital benefits, liberals now get to talk about how "radical conservatives are forcing their religious beliefs on others." It's a dog and pony show, and it completely side-steps the heart of the matter.

Now, I'd like to address another liberal argument: the claim that "gays are being denied equal protection under the law." If this were the extent of the liberal argument I'd say, in part, they're right. I don't understand the logic behind Don't Ask Don't Tell, and gays are being discriminated against in several other ways which are neither state-funded nor affect anyone else but themselves. The intellectual conservative should rail, as President Reagan did for gay teachers, against this unfair treatment.

But it's important to note the distinction between the "enforcement of a negative" and the "denial of a positive." Preventing a gay couple's children from visiting them in a hospital is the enforcement of a negative. Kicking homosexuals out of the military because of their sexual orientation is the enforcement of a negative. Firing gays because of their sexual orientation (and then denying them equal protection under discrimination laws) is an enforcement of a negative.

But the liberal does not stop at this conclusion, but takes it a step further to claim, "gays are not being provided equal protection under the law... because the state refuses to recognize their unions." The state is in no way obligated to recognize or subsidize their union if the majority of people in that state are not inclined to do so. That's the denial of a positive. These are two dramatically different things. Which brings us to the next liberal talking point.

Gay marriage advocates love to pretend like their cause is akin to women's suffrage and the civil rights movement. The stark difference between those movements and the gay marriage movement is that women and minorities were being denied rights guaranteed them by the Constitution. They were being taxed but denied the right to vote. They were being taxed but denied equal access to the public services which their tax dollars helped subsidize. They were not being treated equally or fairly by the judicial system. All of these are instances were a negative impact was being directly enforced on a discriminatory basis.

By contrast, there are instances where gays are having negatives enforced on them (as I just mentioned). As I said, the intellectual conservative should rail against these discriminations because they fly in the face of the Constitutional promise of equal protection under the law. But the Constitutional promise of equality says nothing of state-funded benefits. These benefits are exactly that, benefits which can be conferred or denied at the will of the people who fund them. The denial of a positive benefit is not the same as the negation of a right.

There is no instance where the enforcement of a negative on the gay community would necessitate forced state-recognition of their unions. Each instance of unequal treatment of the gay community can be addressed without redefining marriage or forced state-recognition. All that is required of the intellectual conservative is that he applies the constitution accurately. And while there are instances where gays might be getting treated unfairly, and even unconstitutionally, each of these instances can be solved through proper enforcement of existing law, marriage need not be redefined.

This of course leads the liberal to the conclusion that the conservative is propagating a "separate but equal" approach. This is not the case. Homosexuals have exactly the same opportunity to marry as heterosexuals... because marriage is defined as the union of one man and one woman. Gays aren't being denied their right to marry, and are hence not being treated with "separate but equal" legislation. Rather, it is the LGBT community which has sought to redefine marriage to suit its own desires. Marriage is what it is, and what it has always been. If gays want to have a "marriage," they have as equal an opportunity to do that as anyone else.

Furthermore, to claim that "marriage" is merely a union of two adults in love is a misnomer. If that were the case, every couple that dates would refer to itself as being "married." This is a ludicrous suggestion and, yet again, just another feeble attempt to redefine marriage in a way that suits the gay marriage advocate's desires. Because "marriage" is a state-recognized and subsidized status, the state has the right to define it. Insofar as a state's population does not recognize a homosexual union as being "married," there can be no justification for the claim of "separate but equal" treatment.

Another argument of liberals is that gays are being denied their "right to pursue happiness." "Pursuing happiness" is not a right guaranteed by the constitution - that was the Declaration of Independence, which is not law.

If we followed the logic that everyone is guaranteed a "right" to whatever makes them happy, we would have no means for ever enforcing any law whatsoever. I could decide $1 million dollars makes me happy, rob a bank and say the government has no right to infringe on my "right to happiness." Thankfully, that's not how our government works. People aren't guaranteed everything they want in this country. This is the land of opportunity, not the land of guarantees.

Which brings us to the historical and legal precedent relating to the gay marriage issue.

Liberals will sometimes site section 1 of the 14th amendment as a means for defending their argument:
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
I've already explained how the conferral of marital status is not necessary to address the instances where gays are being treated unequally under the law. So, the last sentence of this clause does not apply. But liberals sometimes contend that gay marriage cannot be a state issue because, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." Yet marriage is not a universal privilege delineated in federal law. On the contrary, The Defense of Marriage act, passed in 1996, explicitly contradicts this assertion. This federal law (No. 104-199, 110 Stat. 2419) had its provisions codified at 1 U.S.C. § 7 and 28 U.S.C. § 1738C. This law has two effects:
1. No state (or other political subdivision within the United States) needs to treat a relationship between persons of the same sex as a marriage, even if the relationship is considered a marriage in another state.
2. The federal government may not treat same-sex relationships as marriages for any purpose, even if concluded or recognized by one of the states.
This federal law leaves the definition of marriages up to the states, but says that the federal government will not recognize (or consequentially subsidize) gay unions as marriages. Both the federal and the state governments recognize marriages for tax-funded benefits. Therefore, it's within the federal government's authority to say what it will and won't recognize to receive those federally funded benefits. It would be impractical for the Federal government not to define the status to which it is issuing benefits.

The next legal reference a liberal frequently makes is one pertaining to the "Full Faith and Credit Clause," which says:
Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.
Advocates argue that this Constitutional clause means that one state is forced to recognize a gay union as "married," should that couple have gotten married in another state which recognized gay unions. However, it would appear that these gay marriage advocates have completely overlooked the second sentence of the clause: "And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof." Meaning, the Defense of Marriage Act, an act of Congress, nullifies the application of the Full Faith and Credit Clause to the gay marriage issue.

The final Constitutional straw for which liberals grasp in their attempts to justify gay marriage is the 9th amendment:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
This clause merely suggests that the people may retain rights, which are not delineated in the Constitution, for themselves through the democratic process. That's why we have state and local governments. I would also reference the 10th amendment on this matter:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Meaning, those powers not explicitly delegated to the federal government by the Constitution are reserved by the state or local governments.

Upon having his Constitutional arguments shot down, the gay marriage advocate will inevitably turn to his "ace in the hole:" Loving v. Virginia. In the concluding paragraph of the court's opinion (issued by Chief Justice Warren in 1967), the Supreme Court of the United States said this:
Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.
Liberals cite that first sentence as a means for justifying their claim that marriage is a right. In all of the precedent ever issued about marriage, this is the only card gay marriage advocates have to play. And here is why they're wrong... first, this ruling does not suggest, in any way, that gay unions fall under the protection of the 14th amendment.

The reason this specific case was protected by the 14th amendment is because an interracial couple was married in D.C. and then had their marriage revoked by the state of Virginia. Virginia sought to actively punish (enforce a negative on) this interracial couple for breaking Virginia law - which banned interracial marriage.

The gay marriage issue is entirely distinct because gay unions aren't trying to avoid negatives through state-recognized status; they're trying to usurp positive benefits. Thus the 14th amendment does not apply. Gay's aren't being jailed simply because of their choice of partner as these interracial couples were. There's a hard and fast distinction here.

As for calling marriage a "basic human right," this has more to do with the context of the time and the definition of the word "marriage" than anything else. Marriage was and is defined as the union between one man to one woman. Nothing in the Loving v. Virginia case would necessitate state-recognized same-sex marriage because it could be argued from Justice Warren's own wording that marriage was invariably seen as a heterosexual union.

Notice that Warren says marriage is "fundamental for our existence and survival" (i.e. procreation, i.e. not gay). Obviously he didn't mean that only procreating men and women can get married; but that he defined marriage as something necessary for human existence certainly implies that he viewed marriage in its traditional context of one man and one woman, ultimately aimed at the procreation of the species. It's clear from the context of the statement that the judge was only speaking in reference to same-sex unions with reference to marriages.

As for this ruling setting "precedent" for the recognition of gay marriage, I'm afraid not.

The July 2006 majority opinion of the New York Court of Appeals in Hernandez v. Robles rejected the reliance on Loving v. Virginia in defense of same-sex marriage, holding that:
The historical background of Loving is different from the history underlying this case. Racism has been recognized for centuries — at first by a few people, and later by many more — as a revolting moral evil. This country fought a civil war to eliminate racism's worst manifestation, slavery, and passed three constitutional amendments to eliminate that curse and its vestiges. Loving was part of the civil rights revolution of the 1950s and 1960s, the triumph of a cause for which many heroes and many ordinary people had struggled since our nation began. It is true that there has been serious injustice in the treatment of homosexuals also, a wrong that has been widely recognized only in the relatively recent past, and one our Legislature tried to address when it enacted the Sexual Orientation Non-Discrimination Act four years ago (L 2002, ch 2). But the traditional definition of marriage is not merely a by-product of historical injustice. Its history is of a different kind. The idea that same-sex marriage is even possible is a relatively new one. Until a few decades ago, it was an accepted truth for almost everyone who ever lived, in any society in which marriage existed, that there could be marriages only between participants of different sex. A court should not lightly conclude that everyone who held this belief was irrational, ignorant or bigoted.
The concurring opinion added:
Plaintiffs' reliance on Loving v. Virginia (388 US 1 [1967]) for the proposition that the US Supreme Court has established a fundamental "right to marry the spouse of one's choice" outside the male/female construct is misplaced. In Loving, an interracial couple argued that Virginia's antimiscegenation statute, which precluded "any white person in this State to marry any save a white person, or a person with no other admixture of blood than white and American Indian" (id. at 5 n 4), violated the federal Due Process and Equal Protection clauses. The statute made intermarriage in violation of its terms a felony carrying a potential jail sentence of one to five years. The Lovings—a white man and a black woman—had married in violation of the law and been convicted, prompting them to challenge the validity of the Virginia law. The Supreme Court struck the statute on both equal protection and due process grounds, but the focus of the analysis was on the Equal Protection Clause. Noting that "[t]he clear and central purpose of the Fourteenth Amendment was to eliminate all official state sources of invidious racial discrimination in the States," the Court applied strict scrutiny review to the racial classification, finding "no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification" (id. at 10, 11). It made clear "that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause" (id. at 12). There is no question that the Court viewed this antimiscegenation statute as an affront to the very purpose for the adoption of the Fourteenth Amendment—to combat invidious racial discrimination. In its brief due process analysis, the Supreme Court reiterated that marriage is a right "fundamental to our very existence and survival" (id., citing Skinner, 316 US at 541)—a clear reference to the link between marriage and procreation. It reasoned: "To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes . . . is surely to deprive all the State's citizens of liberty without due process of law" (id.). Although the Court characterized the right to marry as a "choice," it did not articulate the broad "right to marry the spouse of one's choice" suggested by plaintiffs here. Rather, the Court observed that "[t]he Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations" (id. [emphasis added]). Needless to say, a statutory scheme that burdens a fundamental right by making conduct criminal based on the race of the individual who engages in it is inimical to the values embodied in the state and federal Due Process clauses. Far from recognizing a right to marry extending beyond the one woman and one man union, it is evident from the Loving decision that the Supreme Court viewed marriage as fundamental precisely because of its relationship to human procreation.
As for Supreme Court precedent, the United States Supreme Court in 1972 dismissed Baker v. Nelson, which was a case where the Minnesota Supreme Court ruled that Minnesota law limited marriage to opposite-sex couples, and that this limitation did not violate the United States Constitution. The plaintiffs appealed, and the United States Supreme Court, 409 U.S. 810 (1972), dismissed their appeal outright "for want of substantial federal question".

This ruling (because of its recency and its relevancy) supersedes Loving v. Virginia. The Supreme Court dismissal of Baker v. Nelson serves as primary precedent as a matter of federal constitutional law because of the absence of federal authority regarding same-sex marriage (due to the fledgling nature of the cause).

Hence, the intellectual conservative can safely say that there is no standing legal precedent which suggests gay marriage is a right. As you may or may not be aware, older Supreme Court rulings are superseded by new ones, and so Loving v. Virginia matters not.

Another favorite argument of the left is that "people have a right to enter into contracts of their own volition." That's certainly correct, but any contract requires at least two willing participants. Gays can already live together by whatever means they wish and call themselves by whatever title they desire, what they want now is state-recognized status. This, therefore, is not a contract solely between the two gay people involved, but a contract between them and the state from which they seek recognition, validation and subsidization. What we have with gay marriage is one willing participant (the gay community) insisting that it has a right to a contract with the state. As with any contract, both parties must agree - hence why state-recognized unions must be defined on a state-by-state basis.

At some point, you might even come across a gay marriage advocate who suggests that Christianity has "stolen" the idea of marriage, and that marriage wasn't originally a religious institution.

One reason Christianity frequently creeps its way into this debate is because the book of Genesis defines marriage as the "divinely ordained union between one man and one woman" (Genesis 2:24). Now, the intellectual conservative needn't care how the Bible defines marriage because Biblical text cannot serve as an empirical or legal justification of policy. But what does matter is that marriage has been a religious institution since the Torah (Old Testament) was written - which precedes even Christianity, let alone the civilized process of state-recognized unions.

The Torah dates back to about 500 BC. What "legal" unions the gay-marriage advocate suggests existed before this time period is uncertain. There were very few laws during this time period, let alone sophisticated means for state-recognized statuses and taxation. We could perhaps look to Rome... but even in ancient Rome the Latin word for marriage, "matrimonium," defines the institution's main function from the roman perspective.

Its root, "mater" (mother), carries with it the implication of heterosexual procreation. The idea conventionally shared by Romans regarding the purpose of marriage was that it was a relationship between one man and one woman aimed at producing legitimate children; citizens producing new citizens. Even by Roman standards, gays could not be "married" it was then (as many feel it is now) a contradiction of terms.

And even if we were to use Roman standards, they didn't have state-recognized and supplemented unions like we do. So even if ancient Rome had allowed gays to "marry," it wouldn't be relevant to this debate beyond a superficial level. And for these Roman weddings, the "nuptiae" began with celebration, combining the legal, religious and social features of the two being wed. This, again, shows the inherent link of marriage and religion.

We could go back even further in time to Ancient Greece. Grecian priests did not direct weddings, but a set of religious rituals were followed, after which the couple would live together.

The gay marriage advocate would basically have to go back to Ancient Egypt to defend the claim that unions were distinct from religion. Obviously, humans were procreating long before either formalized marriage, governments or religions were ever conceived.

But I think a good general rule of thumb is: if you have to take your argument back 5,000 years to find a practice which justifies your claims... you're probably wrong. But even if we did reference the ancient Egyptians, all a "marriage" was to them was the signing of a contract between the parties involved. There was no real Egyptian "government" to recognize any such union as legitimate, and there were no tax-funded benefits which could be conferred to such unions. So, the reference would be totally irrelevant.

Liberal attempts to completely detach marriage from its religious history are laughable. Obviously, humans in their monogamous nature, had processes for forming unions which predate religion, government... hell.. even speech. The fact remains, "marriage" has always been a religious institution. What the Ancient Egyptians had was not marriage in the way that marriage exists today or has existed for thousands of years. In actuality, ancient Egyptian unions were more like slavery (where daughters were bartered for like property) than anything else.

This isn't to say that the act of two people being together has always been religiously overseen - but the process of forming an official union between two consenting adults known as "marriage" has always been a religious institution.

So where does all this information leave the intellectual conservative? There are two levels of conclusion to this matter: procedural and personal.

For the intellectually conservative procedural solution to the gay marriage issue, there are several things which must be done and/or realized:
  1. There is no standing legal precedent which defines marriage in such a way that gay couples might claim it as a right.
  2. All state-recognized unions (same or opposite-sex) should be exclusively referred to in legislation as "civil unions."
  3. The government (federal, state or local) should have no association with the religious conferral of marital statuses. Marriages have no business in state affairs, and the state has no business meddling with marriage. Usurping the term "marriage" is like an atheist claiming Christian Baptism as a "right." That's just a false application of the term "right."
  4. The people of each state should have a democratic say in what it is they will recognize (and consequentially subsidize) as a state-recognized union (i.e. civil union). This is not a decision to be made by activist courts.
  5. There are certain unfair and unequal practices in action (like the Don't Ask don't Tell policy) which actively punish gays as individuals solely because of their sexual orientation. Infringement of personal liberty is not something conservatism supports.
On the personal level, the intellectual conservative has far more leeway to let his personal value system come into play. Insofar as the above procedural approach is taken, the conservative can then vote on the gay marriage issue in accordance with his own values.

Do you think recognizing and subsidizing gay unions will benefit your community and state? That's a question no one can answer for you but yourself, but it is a question you have a right to answer. And the consensus of the citizens of your state, not the ruling of an activist judicial body, should be the deciding factor on how your tax money is spent.

It's certainly not the case that you must covet everything which the liberal covets for fear of being seen as a "bigot." I know this seems to be the MSM suggestion, but it simply isn't the case. Maybe you would rather your tax money go to additional school funding, or paying off government deficits. In any case, you're not a bigot simply by virtue of having a preference in how your tax money is spent. And you're not a bigot just because you support the traditional definition of marriage.

Despite the massive megaphone being used by Hollywood, the MSM and liberal academia to tout gay marriage, traditional marriage still has historical context, legal precedent and the majority of Americans on its side. The intellectual conservative can very easily make the case against gay marriage without promoting hate or discrimination. The facts as you've seen them here are rarely presented by conservatives to defend themselves. So it is my hope that you will make use of this information to defend intellectual conservatism from the vicious smears of the Left while also exposing the fundamentally unsound arguments used by gay marriage advocates.

29 comments:

Rekh127 said...

I have a few things to say primely about natural law. Natural Law is the essence of conservatism,

" the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. "

Thomas Jefferson

To deny them is to deny our nation's existence.

Cicero (a pagan, polytheist, Roman) wrote about them

“True law is right reason in agreement with Nature...it is of universal application, unchanging and everlasting.... we need not look outside ourselves for an expounder or interpreter of it. And there will not be different laws at Rome and at Athens, or different laws now and in the future, but one eternal and unchangeable law will be valid for all nations and for all times, and there will be one master and one rule, that is, God, over us all, for He is the author of this law, its promulgator, and its enforcing judge.”

John Locke who our constitution is based on wrote on them
"All mankind... being all equal and independent, no one ought to harm another in his life, health, liberty or possessions. "

They're not arbritary things decided by the constitution, they're laws that make logical sense.

You hurt someone you have make retribution, you are allowed to own property, etc.

If it was as arbritary as they were in the constitution, then anything could be "true" or a right of man. I think you've lost touch with the classics. as the Pravda said,

"First, the population was dumbed down through a politicized and substandard education system based on pop culture, rather then the classics."

We don't teach what the founders read anymore, thats what went wrong back in the early 20th century, we had people getting into power who had never read and understood the basis for the constitution, who weren't trained with logic, and it's gone downhill from there.

Philo-Junius said...

There is a longstanding conservative understanding that flagrant and notorious immorality is a public nuisance. Flagrant and notorious sexual relationships evacuated of any broader social utility through such things as reproduction AND childrearing has long been understood to fall within these parameters.

There is, therefore, ample reason for a conservative to support not only the traditional definition of marriage against attempts to redefine it, but also to support social discouragement of the publicisation and propagation of homosexuality.

Ethan said...

I am impressed that the case against same sex marriages can be put as well as you have done. I'd like to give you credit for that!

First, you, as a conservative with Democrats in control of the Congress and White House, should know better than to make an ad populus argument about 57% of America agreeing with you. You're probably in the minority on other view points, and you can't pick and choose logical fallacies.

Second, you say "Marriage has always been this way" when it hasn't. There's two ways to look at this:
1. It was actually much more restrictive in past American history; only whites could marry other whites, divorces were much harder to come by, etc.
2. It was much broader an idea, as is seen with polygamy in other cultures and religions, and with a rather indifference to homosexuality in others.

Either way, the argument that marriage has been the same forever and ever is wrong. Besides, "Appeal to Tradition" is also a logical fallacy.

I'd like to pose a question to you: What, specifically, would be the negative effects on society if SSM were legalized?

The closest response I could find in your post was:
"
Let's say Perez Hilton decides that he thinks state-funded marital benefits ought to be granted to all gay couples too. Suddenly, our government no longer has legal precedent to give a benefit to one person and not another. People with children could no longer get an additional tax cut over those tax payers without children. People without disabilities would then be guaranteed the same federal funding as the disabled. Rich students would be guaranteed the same federal college aid as poor students. Why? Because government-funded benefits would be considered, under legal precedent, as a "right."
"

The mind has to make quite a jump when you say "Suddenly". You make it sound as though Mr. Hilton would like to abolish any definition of marriage, when all that would change is the "one man, one woman" part. Then, marriage (as defined by the government legally) could be a contract between two consenting adults, with implications that they love each other (though of course the implicit ideas wouldn't be legally binding).

So I ask again:
What, specifically, would be the negative effects on society of legalizing gay marriage?

Anonymous said...

I do not see the problem with DADT. The military is not the place for flaunting one's sexuality regarless of sexual preference. Sexuality is a personal and private thing and should remain so.

Ethan said...

I completely agree with Rekh127 on the fact that our education system should have our youth reading more classics, but that's a bit of a tangent. :P

Brett Rogers said...

It took you 48 paragraphs to counter Cheney's single sentence of "Freedom means freedom for everyone?"

Philo-Junius said...

The most immediate negative effects on society of legalizing homosexual marriage would be the obliteration of the particular social premium placed upon the traditional marriage of one man and one woman--a relationship particularly necessary for the long-term health and survival of the nation.

From that loss, we move onto the damage done to society by the legitimisation--not just tolerance, mind you, but social approval--of deliberately sterile sexual couplings as a socially sanctioned activity. This leads in turn to the further commodification of sexual activity, leading to the corrosion of social support for childrearing.

Advocates of homosexuality may argue that social expressions of support and approval for childrearing couples may be made through other avenues and policies, but this ignores the fact that marriage and family law predicated upon traditional marriage WAS the social vehicle for centuries. There is no reason to believe that, having evacuated marriage of its traditional meaning and occupied it on behalf of the forces of the Sexual Revolution, homosexuals will not in time advance similarly on whatever institutions society would attempt to erect to achieve the ends traditionally served by traditional marriage.

In the end, the result of homosexual marriage is the abolition of fruitful heterosexual marriage as a distinct legal concept. The victims of that would primarily be children whose security and welfare was thus undermined.

But the 50 million aborted babies of the last 35 years teach us, if they teach us anything, that the Sexual Revolution will not scruple at the victimisation and suffering of a few million children.

Philo-Junius said...

Mary Cheney can marry any man she wants, or not marry. She's as free as anyone else.

Philo-Junius said...

An illustration of the feebleness of the "freedom is for everyone" trope:

If the people decided, for the benefit of society, to provide special benefits to hog farmers and butchers, it would not be an infringement on the Jewish population's freedom if they did not proportionately receive the benefit of this subsidy, since it would be their preferences NOT to participate that determined their disproportionate benefit, not state discrimination against Jews entering into hog farming or slaughtering.

Anonymous said...

I'm just not sure how you justify telling two consenting adults that they can't do something that two other consenting adults can do. Maybe the state should consider them all civil unions. Should sterile hetero couples not be able to get married? Their marriage does not provide the social utility of reproduction. What about old people getting married? They are often no longer capable of reproduction.

Philo-Junius said...

That the state does not take exceptional steps to guarantee that all marriages advance state interests does not prevent them from maintaining the definition of marriage as a state dedicated to both the procreation and rearing of children.

Two adults can do anything they like in their homes, but when they demand social recognition of their relationship, they have to accept social defintion.

There's nothing wrong with "domestic partnerships" or whatever other housekeeping arrangements people would like to set up for those not cut out for marriage, but it is odious special pleading to argue that homosexual alliances are any more deserving of state recognition and advancement than, say, that of two rather asexual maiden aunts who prefer not to entangle themselves sexually with anyone, but prefer to rely on each other for domestic support and encouragement.

Marriage is about the procreation and rearing of children by a mother and father committed to each other and their offspring. Every step away from recognition of that fact damages the welfare and security of children.

We can note that many marriages are poorly founded, but that doesn't remove the fundamental basis of the institution, or require society to recognise something entirely divorced from those concerns as essentially the same.

Philo-Junius said...

Using the hog farming analogy, it is not an unfair imposition of the state to refuse to certify as hog farmers and extend the state benefits due thereto to those who choose to raise sheep, but call themselves hog farmers.

The self-deception of those who do so does not compel the state to accomodate their self-deception.

Conservative Brawler said...

@Rekh, as I said in the article:

"I've no doubt that the founding fathers were religious/ faithful men and that they never intended for Christianity to be treated in the ways that it is today.

But as a philosophy major, I learned that faith is not and cannot be a justification for any empirical and universal argument. This is true for either morality or legality. Attributing the source of your reasoning to something the rest of the population may or may not have faith in is not conducive to creating sound social contracts. Saying "these are inalienable rights because god gave them to us," and saying "there are inalienable rights because we gave them to ourselves," for the nonbelieving population, is essentially the same thing. And because the law applies equally to all, its foundation must be equally applicable to all as well.

I am parting from traditional Conservative dogma when I say this (or at least the explanation outlined in Mark Levin's Liberty and Tyranny), but our inalienable rights come from neither our own positivism nor God. In America, our inalienable rights come from the Constitution of the United States. Those rights which are conferred to U.S. citizens are granted irrespective of that person's religious faith, sexual orientation, gender, race, creed, etc.

Can we say that politicians ought to make every decision without an ounce of moral or religious motivation? Certainly not. It's quite clear that our subjective decisions are framed by our personal value systems. However, the intellectual conservative does not believe in legal positivism and has the utmost respect for our Constitution and the founding principles of our forefathers. The law cannot just be whatever we want it to be in a given circumstance. That would lead to anarchy and tyranny. Conversely, the law ought not be so immobile as to find itself incapable of adapting to modern conflicts.

And so the intellectual conservative must balance the legal foundations laid down by our founders, historical context, legal precedent, and the modern-day empirical knowledge of the issues which face us."


Moreover, it is not wise to suggest that intellectual conservatism contends that rights are "arbitrary things decided by the constitution." Intellectual conservatism contends just the opposite that, as a Constitutional Republic, those rights and authorities delineated in the Constitution are the primary guiding factor for our legislative efforts. The fathers used the theory of natural rights as their guide when determining which American rights should be inalienable. However, that does not establish a logical defense of legislating from a religious (let alone Christian) perspective.


@Philo-Junius, I really appreciate your thoughtful and very articulate comments! With regards to your first comment, I think you are alluding to the two pronged solution (procedural and personal) I referenced in my closing remarks, are you not?

Conservative Brawler said...

@Ethan, to your first point: I was not making an appeal to populism, as you suggest. I was merely pointing out the hypocrisy of the liberal MSM. However, recent polling information indicates that a populist approach might actually be a viable option for conservatives. The majority of Americans oppose gay marriage, abortion, more taxes and the closing of Gitmo. The Democratic control of the Federal government has no direct correlation to the "populist appeal" of a philosophy.

To your second point: I broke down the history of marriage in my post and explained my reasoning there. And though you are correct in saying that marriage was previously more restrictive in American history, as evidenced in Loving v. Virginia, it cannot be said that the definition of marriage as one man and one woman was ever in question. Moreover, I was not making an "appeal to tradition," merely pointing out that the liberal who tries to disassociate marriage from its religious roots is doing so in historical error.

To your third point: One does not, as you suggest, have to "make quite a jump" to come to the logical conclusion of marriage benefit usurpation. If gay marriage is taken to the Supreme Court under the grounds that state-funded benefits cannot be given to one group without giving it to another group, there will, at that very instant (suddenly) be established legal precedent which renders the government incapable of giving any benefit whatsoever to one group but not another.

To answer your direct question more specifically:

"What, specifically, would be the negative effects on society of legalizing gay marriage?"

I think Philo-Junius offered a very strong response. However, I am primarily concerned with the Constitutionality of our procedural approach to this issue. As I explained in my conclusion, the Conservative should be primarily focused on ensuring that this issue is addressed in the legally appropriate ways. Once that is done, people can determine who they are or aren't willing to define, recognize and subsidize as "married." The "negative effect," for the conservative, would most likely come from direct damage done to our legislative process should the procedural solutions I have here outlined and defended be ignored and abused.

As I also explained in my conclusion:

"Do you think recognizing and subsidizing gay unions will benefit your community and state? That's a question no one can answer for you but yourself, but it is a question you have a right to answer. And the consensus of the citizens of your state, not the ruling of an activist judicial body, should be the deciding factor on how your tax money is spent.

It's certainly not the case that you must covet everything which the liberal covets for fear of being seen as a "bigot." I know this seems to be the MSM suggestion, but it simply isn't the case. Maybe you would rather your tax money go to additional school funding, or paying off government deficits. In any case, you're not a bigot simply by virtue of having a preference in how your tax money is spent. And you're not a bigot just because you support the traditional definition of marriage."


@"Anonymous #1": It may well be true that sexuality, on the whole, is not conducive to military operations. But only the admission of gay sexuality is punishable by termination from the armed forces. A heterosexual cannot be discharged simply by virtue of proclaiming their sexual preference; a homosexual can. That's unequal protection under the law.

Conservative Brawler said...

@Brett Rogers, I think you have taken the former Vice President's statements out of context. He explicitly said that he thought it was an issue to be determined on the state level (which is the procedural solution I have here proposed). He then went on to explain his personal preference - which is not out of line with the personal solution made available to him through the intellectual conservative's procedural solution. I was not looking to "counter" Cheney, but to facilitate his response with depth and context.

@Anonymous #2, I explained in my article the relationship of procreation to marriage as it pertains to legal precedent. I'll refer you to the section regarding the ruling of Loving v. Virginia.

Furthermore, I'm not certain you read the article at all. The intellectual conservative isn't interested at all in telling a consenting couple what they can do. What the intellectual conservative is interested in is the legally valid process by which a civil union is defined, recognized and subsidized with tax payer money. For further clarification, I'll refer you to the section of the post where I discussed "social contracts."

Rekh127 said...

Natural Law isn't just religious, It's a concept the vikings and the Saxons and the Anglo Saxons without regard to religion.

Philo-Junius said...

There is much to like in Conservative Brawler's initial examination of the subject, but I take issue from the point of view as aspiring conservative intellectual who believes that a nonsectarian case can be made for the immorality and social undesirability of sexual activity outside of the traditional definition of marriage, and that a compelling case can be made that the socially negative consequences of notorious and flagrant homosexual activity is not ameliorated by dressing it up with white cakes and bouquets and calling it marriage, but rather that the result would be even more destructive to the social order generally and the welfare and safety of children in particular.

Therefore, I believe there is a case to made for the social stigmatisation of public homosexual activity--including public identification as such--through such things as DADT. I would also therefore argue against extending any special accomodation to households on the basis of the homosexuality of the members of that household. If society wishes to extend benefits to long-term roommates, it can do so without even mentioning homosexuality, never mind according special benefits to it.

Conservative Brawler said...

@Rekh127, I'm well aware that natural rights needn't be religious. Which is why I made the point that, the fact that our founding fathers believed in natural rights, "does not establish a logical defense of legislating from a religious (let alone Christian) perspective." However, it is counter-intuitive and a contradiction of terms to suggest that a government is legally obligated to recognize rights which, by definition, are not granted through legality. The source of a natural right, for the sake of simplicity, is "nature" (or for from the Lockian, God). A Government cannot enforce, defend and espouse rights which an individual claims to have attained from nature (or god). Therefore, these rights are delineated in our laws (most notably the Constitution). So, when discussing legislative processes, it isn't philosophically sound to address laws and rights from a "natural rights perspective," but from a Constitutional perspective. In the realm of politics and government, the Constitution, not nature, not God, not the individual, is the source and road map to our inalienable rights. It's the whole reason we have a Constitution - the founders wanted a means for delineating what they felt were natural rights, and so they established a Constitutional Republic.

Conservative Brawler said...

@Philo-Junius, I think it's safe to say that (within the account I have here provided) your protestations against (what you perceive to be) the socially detrimental nature of gay unions and sexuality in general would serve as a strong justification of social conservatism. I am not opposed to social conservatism insofar as it takes effect through the procedural means I explained. I would dispute, however, that a society has a right to deny gays benefits which it does not fund. What you refer to as "social stigmitization" can easily be seen, from a legal perspective, as legal discrimination should the conservative stray from tax accountability towards seeking to force subjective values on others. The intellectual conservative must always keep in mind a consistent understanding of the limited roles of government. For example, the transferal of estate from one "spouse" to another is not an affair the intellectual conservative should seek to control through governmental means. I suppose you could make the case that military men and women have their salaries paid through taxation and so society ought to have some say over how (and who) is paid... but I would contend that any person willing to serve the country should be allowed to do so, regardless of sexual orientation.

Philo-Junius said...

I don't understand which benefits not funded by the state I'm denying in supporting DADT. Transferral of property from one person to another, assuming no other parties' interests are harmed is not controversial, regardless of what the parties involved call each other, so long as the transfer is adequately documented to satisfy other interested parties.

But my core argument is that, while private conduct is generally beyond the purview of law and mores, social discouragement of notorious and flagrant sexual immorality, including homosexuality, is not the imposition of an arbitrary subjective value, but is rather an objective defense of society's core commitment to its fundamental unit and its healthy and safe perpetuation.

Rekh127 said...

It was not to delineate the rights it says

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. "

Amendment 9

"A Government cannot enforce, defend and espouse rights which an individual claims to have attained from nature (or god)."

Thats just not true, Will not might be true. Hong Kong had one of the best natural rights type of government there was, but there was no constitution or laws that went out and listed all the rights.

The only reason the bill of rights was added (and a good thing too) is to stop the Government from taking away some of our rights to appease the anti-federalists who foresaw the problem. Just because there is no law to say you can do something doesn't mean you don't have that right. There isn't a law that says I can go to a waterpark, but it is my right. Laws are used for defining the border between your rights and interfering with your neighbors rights ;) (Tort Law) and making sure that you do what you agreed to do (Contract law) not listing what you can do, because the power flows up from the people and into the government.If the government was the power broker, the laws would be too list what we can do, instead they are to list what the government can do.

Philo-Junius said...

The problem with legal and constitutional positivism is that no supposedly foundational document can interpret itself. Rather, the document always exists in the context of web of a priori definitions and assumptions.

So attempting to unspool the context and limits of all rights from the Constitution ultimately leads to the substitution of the interpretation of the fundamentalist positivist for the collective understanding of those whose consent made the law effective in the first place.

Conservative Brawler said...

@Philo-Junius, I'll let you have the last word in our discussion. But I will add, in my closing remark to you, that I agree with the philosopher J.L. Mackie when he said, "There are no objective values." Simply be virtue of being a "value," it cannot, by definition, be objective. Values are determined through the subjective perspective, and so moral values (like any valuation) are inherently subjective. That's not to say that they're "arbitrary." Certainly the laws of natural selection suggest that some values are more prudential than others. It is by that standard that I think you should seek to justify many of your claims.

Conservative Brawler said...

@Rekh, Your assertion that the Constitution does not delineate our inalienable rights is demonstrably false, and your inaccurate citation of the 9th amendment is equally demonstrable. The intellectual conservative does not contend that the people (through local governments and the democratic process outlined in the Constitution) cannot claim rights not explicitly mentioned in the Constitution. Therefore your citation of the 9th amendment as a response to me is quite off-topic. The intellectual conservative argues, rather, that all actions of the government must be inline with the processes and limitations described in the Constitution.

The theory of natural rights does not contend that any right which a person deems to come from nature is therefore inalienable. The theory of natural rights contends that there are certain rights which come from nature (or God) which are shared by all mankind. Our founding fathers certainly set out to delineate and defend these limited inalienable rights within the Constitution.

The intellectual conservative does not contend that the law must explicate every possible action (or inaction) a citizen can take in every given situation. That's a logical fallacy referred to as "the simple view of the law," which Jeremy Bentham labeled as "nonsense on stilts."

It absolutely is the case, however, that the federal government's authorities to defend those rights deemed inalienable are delineated in the Constitution. In direct opposition to what you said earlier, it is because of the Constitution that these rights cannot be labeled "arbitrary" by the government or any other acting body. Without the law to explicate which inalienable rights we have and what role the government plays in defending those rights, we would absolute tyranny. It is for this reason that the Constitution, not the theory of "natural rights" is the essence of Conservatism.

Conservative Brawler said...

Let me also be clear that the intellectual conservative does not support legal positivism, but rather the simple premise that the limitations, role and processes of the government (and therefore the rights which the government is obligated to protect - i.e. inalienable rights) are delineated in the Constitution. Students of jurisprudence know that the law must function somewhere between legal realism and legal positivism. To attribute our inalienable rights to nature, or to God, when that is not an empirically sound or defensible position to take, weakens Conservatism. By contrast, the intellectual conservative can and should use existing precedent, historical context and existing empirical evidence to strike the necessary balance between legal realism and positivism. I'm not contending that the intellectual conservative cannot espouse natural rights, but rather that one cannot rely on the premise of natural rights alone to make politically and legislatively valid and sound arguments to be willingly and righteously adapted into the American social contract.

Sharon said...

Congratulations- this is the first intelligent, rational argument that I have heard against gay marriage. Though I disagree with you on many points, I must say that I respect your argument and it made me think critically about many asumptions I have made.

Though I am a lesbian, I do not need the state to call my relationship a "marriage." I would prefer that, but I consider myself to be married no matter the label the government gives me. I applaud every state that chooses (via popular vote or legislature, not activist courts) to recognize same-sex marriages. But like you, I believe that it is up to the people of that state to decide. That is the beauty of our federal system- each state can make its own decisions, and if I disagree with those decisions I have 49 other choices of residence.

I do, however, strongly believe that my relationship deserves the benefits that heterosexual relationships do. If my partner is sick, I should never be denied my right to visit her. And should I die, she has every right to the benefits that I have worked so hard to earn for our family.

I am perfectly happy with civil unions that grant benefits to same-sex couples. Your claim that I still have the "freedom" and "right" to marry a man if I want those benefits is one ofo the few arguments you made that I found ridiculous- and insulting. It implies that I can (and should) "choose" to become a heterosexual if I want to support my family. Believe me, if I had that choice I would not have chosen to be a lesbian in a (mostly) homophobic society.

Sharon said...

Another point to follow up: "one man, one woman" has by no means been the definition of marriage throughout history. Polygamy was the most common form of marriage until a century or two ago, and still exists in many societies today. Arranged marriage, not requiring the consent of either groom or bride, were also the most common marriages, including in the West. Even today, underage girls are forced into marriages with older men.

Obviously, there have is no single type of marriage, even in the West. By no means do I support any of the aforementioned unions. My purpose in citing them is to prove that there is no such thing as "traditional marriage". The definition of marriage has changed numerous times and is different in every culture. I personally believe that two consenting adults should be able to enter into a marriage, regardless of gender.

Hannah said...

Just wondering, but why have you stopped replying to the comments on this blog entry of yours? I mean, if you can't even answer the completely-legitimate questions that have been asked of you, what makes you think your arguments hold any water at all?

Conservative Brawler said...

The last two comments were not responded to because there was nothing really contentious in those comments that needed addressing that hadn't already been discussed. It isn't necessary that every single sentence a commenter posts here needs a direct reply in order for the arguments of this article to "hold water." That's absurd. I'm also not of the mind that it's necessary to comment last to feel like I've "won" an online exchange.

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