Phillip Blond is more correct than he may know. The origins of Totalitarianism go back to the French Revolution. Under classic liberal enlightenment thought the traditional family is what is called a "intermediary social institution" That is it exist between the naked individual & the State. There are any number of such institutions including Universities, Trade Unions, Religion, Poltical Parites, Press outlets, and the like... These are covered under are "right to free assosiation" under the 1st amendment. The entire collection of these insitutioins, including the family are known as "civil society". Of these "intermediary social insitutions" - marriage & the family has always been considered the primary one. As old as Pericles the family has been considered a bulkwark against state tyranny. Marriage & the family are considered to pre-exist the State and even religion. That neither created marriage, but that it evolved organically. The State did not create marriage, it simply recognizes it as one of our natural rights. That is why & how it became recognized as a fundemental consitutional right and international human right. In the Mass. Goodridge case the Court says in the first paragraph of its decision - "quite simply the State creates marriage" This is no mistake that the Judge in such a prominate case starts off with this argument. If the State creates marriage it can uncreate marriage or redifine marriage. A totalitarian state is considered one who dosent recognize these "intermediary social institutions" - Hence "totalitarian" = total social control by the state. Marriage is the basis of the family and the family is considered to be the ulltimante "intermediary social institutions" - with rights against the State.. All this is well established fact of history and represented well in the case law.
posted by Fitz @ 12:01 PM
8 Comments:
"Then do hundreds of studies that show married natural intact families to be the gold standard provide the state with a rational basis to deny people the ability to remarry after a divorce? "
The rational basis test is part and parcel of a 14th amendment analyisis of consitutionality under its equal prtoection test. Should legislatures try and prevent divorced couples from re-marrying than it would be challanged under ones fundemental consitutional right to marriage & no rational basis test would apply.
"And that's the central flaw in your argument. It doesn't matter than the traditional family, where the natural parents raise their children in a stable home for.....once again, you experiment with something you know is suboptimal to the traditional family or something you suspect to be suboptimal. You experiment, because life is an experiment."
The whole point of marriage laws is to promote responsible prcreation and (as much as resonably possible for the law to do) discourage the irresponsible experiments you see as somehow edemic to "life".
Marriage is promoted in the least cohersive way the law can regarding intimante relationships... It simply clearly identifies the one and only coupling of adults capable of bearing children together, labels it, and promotes it as the proper way to bear children and rear them responsibly. As such it comes with a whole series of rights, benifits, duties and obligations tailored for that unigue relationship...
Your social scientific data may be applicable to certain child custody and adoption cases...but the current consensus on the gold standard for child outcomes is more than adequate to further bolster the already extrmemley defferential rational basis test.
As Bertrand Russell, a staunch atheist, put it, “But for children, there would be no need of any institution concerned with sex. it is through children alone that sexual relations become of importance to society, and worthy to be taken cognizance of by a legal institution.” He was speaking in the context of the divorce laws, but the argument is sound enough.
As Karl Popper showed in The Poverty of Historicism
Read Lionel Tiger and George Gilder and Midge Decter for the reasons why
"Hudson and Ricketts ( 1980) have indicated that the meaning of the term homophobia has been diluted because of its expansion in the literature to include any negative attitude, belief, or action toward homosexuality. Fyfe (1983) has also argued that the broad definition ofhomophobia threatens to restrict our understanding of negative reactions to gay individuals. Furthermore, Hudson and Ricketts criticized studies for not making the distinction between intellectual attitudes toward homosexuality (homonegativism) and personal, affective responses to gay individuals (homophobia). They indicated that many researchers do not state the operational definition of what they term homophobic. To clarify this problem, Hudson and Ricketts defined homonegativism as a multidimensional construct that includes judgment regarding the morality of homosexuality, decisions concerning personal or social relationships, and any response concerning beliefs, preferences, legality, social desirability, or similar cognitive responses. Homophobia, on the other hand, was defined as an emotional or affective response including fear, anxiety, anger, discomfort, and aversion that an individual experiences in interacting with gay individuals, which may or may not involve a cognitive component."
http://attorneydiscerning.blogspot.com/
https://my.psychologytoday.com/files/u47/Henry_et_al.pdf
http://www.coe.int/t/dghl/standardsetting/media/Article%208/Gas%20and%20Dubois%20v.France.pdf
"A God without wrath brought men without sin into a kingdom without judgment through the ministrations of a Christ without a cross."
H. Richard Niebuhr
The Kingdom of God in America (1937)
As Justice Cordy wrote in dissent, the majority of the court had -
“transmuted the "right" to marry into a right to change the institution of marriage itself.”1
"only by assuming that 'marriage' includes the union of two persons of the same sex does the court conclude that restricting marriage to opposite-sex couples infringes on the 'right' of same-sex couples to 'marry'.”2
"[i]n context, all of these decisions and their discussions are about the 'fundamental' nature of the institution of marriage as it has existed and been understood in this country, not as the court has redefined it today.” 3
Maintaining that marriage's -“'fundamental' nature is derivative of the nature of the interests that underlie or are associated with it”-and that a an -“examination of those interests reveals that they are either not shared by same-sex couples or not implicated by the marriage statutes.”4
1,2,3,4,- Goodridge v. Dept. of Pub. Health,798 N.E.2d 941, 955 (Mass 2003)
(Justice Cordy dissenting)
“To ignore the meaning ascribed to the right to marry in these cases and substitute another meaning in its place is to redefine the right in question and to tear the resulting new right away from the very roots that caused the U.S. Supreme Court and this Court to recognize marriage as a fundamental right in the first place.”5
5 - Andersen v. King County (J. Graffeo concurring)
NO resonable informed person on EITHER side in this debate maintains that this is not a redefinition of marriage..
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