Constitutionalizing Social Values

[Sisk, Gregory C.]

I appreciate the responses by Frank Cross, Bobby Lipkin, and Paul Finkelman,
not least because of their kind words (appropriately combined with vehement
disagreement), which are reciprocated.  This and the related ReligionLaw
list have, with rare departures, proven to be exemplars of civil discourse
on the most difficult and contentitious of subjects.  When, for example,
Frank labels me as a friend or Bobby expresses genuine respect and
admiration or I observe how valuable I have found Paul's scholarship to be,
I do believe these comments are not just the veneer of civility but the
expressions of a common commitment to scholarly dialogue and a reflection of
a congenial academic community.

 

But still I am left in disagreement.  I will offer only the following
lengthy post and then attend to other duties today; I am sure that my
responses are inadequate and may prompt further responses, but I'll have to
pause on these points for today.  And I once again should confess that this
is not my area of expertise, but I have felt drawn into the debate despite
my amateur status to ensure that both sides are at least given some equal
play, however inarticulate my ramblings may sometimes be.

 

Yes, of course Bobby is correct that a definition does have the practical
effect of excluding what is not included, but I nonetheless think that
semantics and perspective do matter here and that defining a relationship in
one way need not have the primary effect or purpose of excluding something
else.  Bobby's point would have more force if the definition of marriage was
broad and included many types of relationships (siblings, multiple partners,
parent-child, adult-child, etc.) - omitting only homosexual relationships.
Then the exception be being singled out would communicate some kind of
affirmative disapproval, some true "discrimination" in the negative
connotation of that word.

 

But selecting one type of relationship - the union of a man and woman - as
having special value to society and thus worthy of being encouraged and
structured through civic privileges and responsibilities - need not be
understood as a denigration of the many kinds of other relationships that
are not included.  Under the tax laws, as another example, parents with
dependent children are given an exemption of a particular value.  Childless
individuals do not get that benefit.  Yet I think it would be odd to speak
of this as invidious discrimination against childless people or to complain
that an infertile person is left at a particular and unfair disadvantage.
Rather this choice in the tax code is but one recognition  that society has
a particular interest in promoting the welfare of children through such a
benefit to parents, which is different in kind and justifies a different
response.  Providing a benefit to parents of dependent children, thus, need
not be seen as a denigration of people without children.

 

Likewise, while the empirical evidence and philosophical arguments may be
contested (in the democratic arena), society has determined that the union
of the two genders because of its unique reproductive capacity justifies
recognition of that union through "marriage."  Thereby, society seeks to
channel by incentive (rather than forcing by mandate) relationships that
result in conception of children into a family structure so that more
children will be born into a family and have the distinct advantages (borne
out by much recent study) of having both a father and a mother, both a male
and a female model.  Homosexual relationships have not demonstrated that
integral value.  To be sure, many opponents of same-sex marriage see
homosexual relationships as affirmatively harmful or disordered.  But others
simply contend that this new experiment in coupling has not yet demonstrated
the kind of stability, child-oriented nature so as to be regarded as the
equivalent in value to society as the marriage relationship.  May a society
not legitimately decide to move cautiously in an area that is so
foundational, lest it make a well-meaning but badly mistaken choice that
unsettles family structures and creates generational chaos?  May society not
declare that the union of the genders has a powerful significance that
justifies special recognition, without necessarily denigrating other
relationships?  In sum, affirmatively praising one relationship need not be
understood as condemning others.

 

Frank, I can only speak about the compassion and kindness of the people that
I know who have committed themselves to what they see as a principled cause
of preserving marriage.  Hatred toward others is simply alien to who they
are or to the values that underlie their commitment to traditional marriage
as a societal good.  As is often the case with difficult social issues, the
few extremists who vent angry, thoughtless or hateful comments to new media
get public attention.  But, at least in this instance, they are not
representative of the whole.  Nor does the supposed vast rightwing
conspiracy have any monopoly on having to deal with extremists on the
fringes who try to usurp attention.  Having seen thoughtful, principled, and
kind-hearted people who disagree with gay rights programs subjected to the
most hateful and extreme rebukes in public forums (including in law school
or other academic settings), as well as being aware of groups such as ACT-UP
who violate the sanctity of churches to express vitriol toward the Catholic
Church, both sides need to recognize the risk of such misconduct and attempt
to police their own ranks.

 

As for who is the aggressor here, I think the public's perception on that
point will have a major impact on the trends in public opinion.  Whichever
is seen by the public as the party instigating the firestorm may be the
ultimate loser.  What I think is distinctive about the pro-gay marriage
movement has been its primary reliance thus far on anti-democratic measures,
whether by judicial activism in Massachusetts or by local disregard of state
law (adopted overwhelmingly by state referendum) in San Francisco.  And,
yes, I think it accurate to depict this as the workings of an arrogant
social elite, out of touch with and having general disdain toward the
general public.  Of course, constitutional review is a safeguard against the
extremes of democratic governance, but when judicial decrees lack any
meaningful anchor in the actual text and history of the Constitution, then
judicial review loses its legitimacy.  At the moment, the push for gay
marriage is alienating the public by its aggressiveness and questionable
tactics, while losing the opportunity to build public support by
participating in the democratic process.  If in the future those promoting
the constitutional amendment are seen as overplaying their hand, then the
tide of public opinion may shift.  (And, in response to several points made,
how that proposed amendment is framed and how broad it reaches may affect
that perception as well.)

 

Frank and I are in agreement as to the damaging effects of no-fault divorce
on marriage, by allowing a party to depart from the commitment for reasons
of mere convenience or no reason at all.  In light of the growing empirical
evidence that, contrary to the old claim that it is better to divorce than
fight in front of the children, divorce has had stunningly disastrous
effects on children, I hope that the next step in this debate may be a
reconsideration of no-fault divorce.  Again, the people I know who are
working on marriage projects do not focus on one dimension to the neglect of
the other.  As for "alternative arrangements," perhaps I mispoke earlier (I
don't have that post in front of me), but what I was referring to was such
things as the covenant marriage movement whereby a couple could choose a
form of marriage in which divorce would be more difficult and permitted only
for certain reasons, such as abuse, adultery, etc., thereby adopting a
stronger commitment to the family structure.

 

Paul, with apologies, let me respond to just one of your questions by
confirming my prior point.  Marriage does not exist so that adults may
obtain the selfish satisfaction of societal approval of their affectional
relationships.  Close friendships and romantic relationships are fine and
good, but have no claim on civic recognition; in other words, there is no
warrant for governmental approval (or disapproval) or such relationships.
But the heterosexual sexual act of intercourse is profoundly different,
because of its potential for creating new life.  That is the foundation of
marriage.  Yes, some infertile couples marry, but the basic model of
heterosexual union for young men and women is not undermined thereby.  By
contrast, homosexual acts are not pregnant (pun intended) with potential for
creating life.  Yes, some homosexuals have children - but by means unrelated
to their relationship with their homosexual partner, just as do single
people, and daughters living with parents, and sisters sharing a home, etc.
In none of those circumstances is the relationship itself tied directly to
the conception of children, in the unique manner of a union of a man and a
woman in marriage.  To be sure, we could re-define the animating purpose of
marriage into a mere vehicle for self-actualization by an adult who wishes
to express strong feelings for another adult.  But by thus turning the focus
of marriage away from family and children, we impoverish the relationship
and ultimately will impoverish our society as well.

 

Greg Sisk

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