Attorney Discerning

Just another poor dumb sinner; trying to do what he can for Christ & His Church

Tuesday, July 31, 2012

I don’t see this happening in the least. And that is a matter of clear record. I see the exact opposite happening. If gay Americans had approached their fellow citizens in a spirit of authentic liberal debate and democratic pluralism about the need for X or Y benefit being extended to their couples; or had asked those few States that still had sodomy laws & professed “We see these as infringements of our privacy, a Scarlet letter against us as people, and a downright silly use of police and legal resources” many people (including myself) would have joined their ranks in such a movement. Multiple arrangements can be made in the form of legislation at the State and National level regarding genuine interests that may hinder caring couples from conducting their affairs without undue burden. As I said above gay Americans have not approached their fellow citizens in a spirit of authentic liberal debate and democratic pluralism. What has happened is a matter of near history and the record is clear. They have used the tool of what is called “judicial activism” or “living constitutionalism” to force on multiple states a new definition of marriage that the people oppose for a host of reasons having to do with the general welfare, rights of parents and children, the actual institution of marriage, and religious liberty questions. This approach was never preceded with a legislative push or engagement of the public on behalf of gays concerns. Rather a national and indeed international push was made exclusively through the court at the time of the Goodridge decision in Massachusetts. That push was not asking for anything, but rather demanded that the country redefine the institution of marriage. Any opposition was called and dismissed by Supreme Courts as “irrational bigotry: Marriage itself and its justifications were dismissed as “irrational bigotry”. This was paralleled by a compliant media and gay advocate groups that framed the issue as one of a request for “adding” (as apposed to redefining) gay couples into “marriage”. Accusations of bigotry, homophobia, & comparisons to the black civil rights movement * anti-miscegenation laws abounded, and still do. A Democratic U.S. Senator I spoke with said (off-the-record) “This is not a movement, its a scheme) As far as democratic engagement; the people answered back by adopting constitutional amendments in 31 States so far… defining marriage as it was already defined in their laws…as protection against further intrusion by unlawful court opinions. The example of California is instructive. After the Hawaii Behar decision – the people of California adopted a ballot initiative that protected marriages definition at law. It won by 65%. They also adopted civil unions, as did several states as a way of addressing homosexuals concerns. This was dismissed by the courts as inadequate and indeed has been used as an excuse by court for redefining marriage. After the courts in California did this…the people themselves got another ballot initiative, this time a constitutional amendment stopping the courts from redefining marriage. Again an arrogant elite ignored the people and imposed same-sex “marriage” through Federal Judges. Any authentic legislative gains won by same-sex “marriage” advocates have been done under the pale of this oppressor/oppressed dicotomy, and amidst a media firestorm only too willing to continue to cast this battle in the framing set by Judges and advocates. This is not a movement to address authentic concerns homosexuals may have for their relationships. This is a movement rooted in a desire to overthrow the institution of marriage as a legal relationship that centered in sex differences and hereditary lines. Being fortunate enough to be on good terms with high placed Law School professors, advocates, & Judges who reveal the authentic motivations and ideological underpinnings of this movement simply reaffirms what sophisticated observers already understand. Taking the approach that this is simply sympathetic need driven requests made by homosexuals to address some genuine needs that can not be addressed by other avenues is either disingenuous or rooted in a delusional esteem for ones own cause; rather than a clear reading of near history. In order to understand your adversaries point of view on this subject you need to be able to understand… #1. Just how grotesque and insulting these results driven Judicial decisions are #2. How the entire movement for same-sex “marriage” & even civil unions would have found little political traction without such usurpations of our jurisprudence #3. The real philosophical divide between marriage as understood in law & culture as opposed to what this new definition of marriage says about the institution. Perhaps this would be easier if you would meet the substance of our disagreements & displayed a greater understanding of your advesaries arguments and worldview. This could represent a start. I would be happy to suggest readings and books that also agree with my understanding of what is being done to our law & culture through this “movement” that is really a scheme. All the time. The Americans with disabilities act was voted on and gained acceptance by bi-partisan legislative actions. It represented standards that cost the government and private business billions of dollars to comply with and is still being hashed out. Minority groups as you describe them don’t get a free “push” or “extra head start” through the courts in a democracy simply because there numbers may be small. The Black civil rights movement was no different. The 14th amendments guarantees of equal protection were written precisely with African-Americans in mind. The courts were not helping a minority out; they were applying correctly the 14th amendments guarantee of equal protection after generations of Jim Crows “separate but equal” approach proved an obvious farce. They had enabling legislation like the 1957 Civil Rights act as added evidence of popular will. Blacks had been subjected to massive voter disenfranchisement efforts and intimidation that made it impossible to effectively use the ballot box to effect change. I do not bring up these examples to simply show how gay “rights” & black civil rights differ. I bring them up to illustrate why Judicial intervention was necessary and warranted under the law, as opposed to same-sex “marriage” that is clearly unconstitutional infringement on the rights of all Americans. Another example can also shed light on the “scheme” you may unwittingly be a part of. That is the right of woman to vote. Here you had half the population disenfranchised from the most potent form of political participation; the vote. Now remember, the 19th amendment came after the 14th. Courts at the time could have used the 14th amendments language to enable female voting but they did not. This is because the 14th amendment simply was not written with females in mind. It took about a generation for woman to use their free speech rights and rights to free association and petitioning their government for the regress of grievances, in order to convince the male half of the population to allow them the vote. All this occurred with out women even being able to vote; they had to convince men in large numbers to give up their monopoly on the franchise; and it worked! This is a testimony to the power of authentic equality arguments ability to prevail despite political disenfranchisement. This shows that our system of government properly applied, liberal democracy does work when people play by the rules. All these examples are juxtaposed to the illegitimate abuse of power that is occurring in the name of gay “rights”. “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.” * * – Andersen v. King County; New York Superior Court (J. Graffeo concurring) NO reasonable, informed person on EITHER side in this debate maintains that this is not a redefinition of marriage. Allow me to flush out one particular insight that I take as evidence to demonstrate that (at the highest levels) supporters of same-sex “marriage” are not simply “like” totalitarian movements but rather are, in & of themselves…literally totalitarian The origins of Totalitarianism go back to the French Revolution. [The Origins of Totalitarianism - Hannah Arendt] 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, Political Parities, Press outlets, and the like… These are covered under our “right to free association” under the 1st amendment. The entire collection of these institutions, including the family are known as “civil society”. Of these “intermediary social institutions” – marriage & the family has always been considered the primary one. As old as Pericles the family has been considered a bulwark 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 fundamental constitutional right and international human right. In the Mass. Goodridge case the Court addresses this understanding in its decision – “We begin by considering the nature of civil marriage itself. Simply put, the government creates civil marriage..” This is no mistake that the Judge in such a prominent case starts off with this argument. If the State creates marriage it can uncreated marriage or redefine marriage. A totalitarian state is considered one who doesn’t 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 ultimate “intermediary social institutions” – with rights against the State.. All this is well established fact in the history of political philosophy and represented well in the case law.* * {Supreme Court precedents of Turner v. Safley, 482 U.S. 78 (1987); Zablocki v. Redhail, 434 U.S. 374 (1978); Loving v. Virginia, 388 U.S. 1 (1967); Griswold v. Connecticut, 381 U.S. 479 (1965); Skinner v. Oklahoma, 316 U.S. 535 (1942) } Under international human rights law and Supreme Court precedent marriage is considered a fundamental right; the state must recognize marriage as originally defined. It can no more redefine marriage than say redefine “speech” to mean “saying those things the government wants you to say” or redefine “arms” to mean “down pillows”. This is not slight of hand but rather naked subterfuge. This is what I mean when I say that you show no real evidence of being able to understand your adversaries world view on this subject. Michael (writes) “And of course, I understand your world view. I was raised Republican, Catholic, and Texan. I understand you. I just don’t agree with you.” None of these facts necessarily mean you genuinely understand our world view or the facts of what is taking place and how it is being accomplished. Michael (writes) “I hope you’ll understand that it’s not quite fair for you to ask me to defend, explain, or denounce arguments that I haven’t made.” I don’t expect you to do anything of the sort. What I expect you to do is be able to comprehend and acknowledge that these are in fact the strategies and animating impulses of the movement to redefine marriage. Towards this end, the best paradigm that I have seen is that used by scholars of the family.. That is the “pure relationship theory” vs “the conjugal model”. As N. Y. Superior court Justice J. Graffe points out..our fundamental constitutional right to marriage is predicated on the conjugal understanding of marriage. I hope you can bring yourself to a fuller understanding of the arguments against same-sex “marriage” – How redefining a institution changes its meaning and purpose & how transparent violations of our rights have been the predicate on which this “movement” has gained the traction it has. But for such an egregious abuse of “raw judicial power”, our democratic process would have lended itself to a more sober reflection and intellectually honest approach to an institution that is as important to the whole of society as marriage.