Thursday, August 5, 2010

The Problem with Gay “Marriage” Bans

Editorial Comment by Dr. J. P. Hubert

The ruling yesterday by Judge Vaughn Walker in which he overturned California’s Proposition 8 banning homosexual “Marriage” is but another in the long line of those being issued by an American Judicial system steeped in Legal Positivism (Pragmatism). As I wrote several years ago for the Intellectual Conservative, December 2005 in “The ‘Fruits’ of Legal Positivism: Utilitarianism in Action”:

“For over 60 years, the United States Supreme Court has progressively departed from what was primarily a Natural Law based understanding of its role in constitutional interpretation…That construct utilized the constitution as written, relying on the so-called original intent or a strict constructionist interpretation as a template upon which the tenets of the Natural Law were traced. For almost 100 years, the USSC has embraced Legal Positivism, in which no immutable moral principles are recognized, including the first and second principles of the Natural Law (do good/ avoid evil and treat your neighbor fairly).

…The only unifying principle allowed to permeate legal positivism is personal autonomy or choice, itself an expression of ‘survival of the fittest’ (read selfishness) which has become the new judicial rallying cry. Thus it follows that virtually any new social/cultural experiment can be codified into law by the Supreme Court even if such a law could never be passed by the representatives of the people who still adhere largely to the principles of the Natural Law and the Judeo-Christian Ethic (e.g. Proposition 8 banning homosexual “marriage”). Why? Because the court is simply not restrained or controlled by the observance of any moral absolutes.

…Legal Positivism or pragmatism -- developed by Oliver Wendell Holmes and those who followed… is based entirely on a Secularist worldview in which the controlling moral philosophy is utilitarian… American Jurisprudence is now held hostage to an alien judicial philosophy based not on the Natural Law or the Judeo-Christian ethic, but rather on the post-Enlightenment philosophies of Mill, Hume, Rousseau, Locke, Hobbes and Darwin.

Legal Positivism reduced to the lowest common denominator is the application of Darwinian Natural Selection (survival of the fittest) to a constantly changing moral code based on personal preference or “choice” in the realm of the civil law. Under this rubric, moral absolutes do not really exist, since morality in general is determined by what is socially acceptable at a given period of time in history…

…it is assumed that if Congress passes a law, the USSC has the right to determine whether it is constitutional and morally permissible, as if the two were synonymous. It is simply presumed a priori that nothing which the court could declare constitutional for whatever reason could ever be immoral, despite obvious examples to the contrary. The entire process becomes an exercise in debate over second order questions without any first order foundation. Put differently, there is no transcendent -- in the metaphysical sense -- referent by which the moral licitness of a given law can be compared. Laws become whatever society at a given point in history wants them to be. The function of the Supreme Court then becomes one of “divining” what Americans presently think, feel or want, what common assumptions they have become accustomed to making and so on. Then a majority of Justices create a way or tactic -- whether logically coherent or not - -to justify the conclusion which they have already made. In the process, to a greater or lesser degree they attempt to demonstrate how the Constitution actually contains the warrant for their findings.

…the moral licitness of any law is a totally separate question from whether it is constitutional; irrespective of whether it is or is not consistent with “original constitutional intent.” The original intent of a given law may always have been morally illicit from the perspective of the Natural Law, the Judeo-Christian Ethic, and the common morality. It may even have been immoral by virtue of any other applicable moral philosophy -- even utilitarianism. For example, slavery was arguably immoral by the Natural Law/Judeo-Christian Ethic, but yet was not originally considered unconstitutional. It is difficult today for most people to believe that African-Americans were once considered property. Slavery was codified in law, however, because even from the beginning of the American experiment, the civil law was not based entirely on the Natural Law. Utilitarian moral thinking began very early to insinuate its way from the Continent into the colonial experience.

We are left to believe, according to the tenets of legal positivism, that during the period in question, slavery was permissible and constitutional because it was commonly accepted, economically based and people were accustomed to it. At a later date, the “situation” changed and a different set of assumptions obtained. It also means that if in the future it becomes expedient for slavery to once again exist, the Supreme Court could again reverse itself and legalize slavery based on race, religion, class or any other criterion thought to be of utility. The reason this is so is that there are no absolute moral proscriptions which undergird the civil law according to the rubrics of legal positivism…

…It is simply moronic to believe that constitutional law exists without a pre-philosophy, a set of fundamental assumptions or overarching principle(s). Every discipline has a set of so-called pre-philosophical assumptions, also known as first-order philosophical questions/presumptions. For example, the question of what the law is in a metaphysical sense actually involves a first order philosophical question and is not a legal question at all. Every Senator who serves as an interlocutor on the Judiciary Committee and each USSC nominee who appears in the confirmation process have a “pre-philosophy” with regard to what the civil law should be grounded in, as well as a specific judicial/constitutional philosophy (e.g. original intent vs: an evolving constitutional standard). It unfortunately has become acceptable to simply deny this (as Judge John Roberts did at his confirmation hearing), as if the Supreme Court is able to divine the proper ruling virtually out of “thin air” without regard to first principles.

Social Darwinism Replaces Transcendent Truths

What we have done then as a culture over the past half century is to codify in the civil law, a legal system which is not only productive of illogical and contradictory rulings, but one which is totally arbitrary and grounded in the principles of social Darwinism rather than immutable truths. Decades ago it was incumbent upon those who understood -- that the USSC was attempting to radically alter the moral philosophical basis which had been foundational to the U.S. constitutional system -- to rise up and object in the strongest terms rather than remaining mute by “playing the game.” Had this been done in the mid-twentieth century, the present deceptive system for confirming a Supreme Court Justice would not exist. The result of failing to do so has meant that the entire process is now nothing more than a pretense in which interested candidates must either actively or passively agree to be involved in evil as a means to the potentially good end of being placed on the Supreme Court, the very definition of Utilitarianism. Such a circumstance is incompatible with the truth that should be at the foundational center of justice and is not simply a matter of the Supreme Court legislating from the bench. Legislating by the rule of the majority in a way which is contrary to the Natural Law is also immoral. Rather than fairness, consistency and equality before the law, the present system is capricious and inherently unjust. It typifies a “might makes right” mentality achieved either through a tyranny of the majority at the ballot box, the appellate court or Supreme Court level as demonstrated in 5-4 decisions. Truth is the very last thing which is served under such a system and once truth is sacrificed at the alter of expediency, justice is vacated as well.

With respect to the USSC, the issue is not judicial activism alone (the court usurping the role of the legislature), nor is it a failure to adhere to stare decisis, original intent or a Strict Constructionist methodology. It is the failure of both the legislative and the judicial branches (but especially the USSC) to adhere to the immutable principles of the Natural Law as codified in the Judeo-Christian Ethic. Until this issue can be discussed vis-a-vis the foundational philosophical problem that it is; rather than the straw man indictment which labels it “a private or deeply held religious belief,” our laws will remain unjust and no one in America will be safe from tyranny. The fact that our laws are no longer based on the common morality which flows from the Natural Law as historically contained in the Judeo-Christian ethic [and later common law] is ultimately a philosophical not fundamentally religious problem. Once this is widely recognized we can then make progress in reforming the U. S. Supreme Court, something all true conservatives should be interested in.”
read original article HERE…

No Agreement on Right and Wrong:

A ban such as California's Proposition 8 on homosexual “marriage” presupposes of course that the question is a judicial or elective one rather than foundationally a moral philosophical one. Even more fundamentally; by what set of criteria are Americans to judge the moral licitness of issues of public policy? In contemporary America there are none. In fact there is absolutely no agreement at all among the ruling class in the United States about what is morally right or wrong. These kinds of questions are simply never addressed. With the elite's use of the Hegelian dialectic in which the populace is being force-fed a lethal dose of right/left diatribes by the corporate fawning media, there would be too much polarization for there ever to be agreement on societal moral (immutable) norms.

Human Nature is Fixed:

Rather than utilizing a natural law based paradigm in which human anthropology is assumed to be fixed and in which the “ought” (of moral philosophical questions) becomes necessarily circumscribed by the “is” of human nature, legal pragmatism assumes that human nature is elastic, that there are no immutable moral norms and that moral questions are really not moral in any actual sense at all. This is the sine-qua-non of utilitarian legal pragmatism. From the perspective of legal pragmatism, the first order question of how one determines right or wrong is simply irrelevant. Most Americans would be surprised to find out that while they must live as if there were fixed moral norms the legislature and the judiciary do not.

According to the Utilitarian calculus undergirding the legal pragmatism currently in vogue, the judiciary and the legislative avenues exist to normalize/sanction whatever behavior is desired by a suitably powerful subset of the populace. At the present time, it is popular to normalize personal behaviors which are contrary to the natural moral law only because a powerful vocal minority of Americans wishes that to be the case. Under this rubric questions of right and wrong reduce to the vocalized desires of politically powerful interest groups which of course change from time to time and place to place.

What About the Common Good?:

The argument which appears to have won the day is that it is unfair or unjust for some persons to be able to derive the benefits of the married state and not others simply because of their personal sexual habits/preferences. It is not enough that individuals are allowed to behave in virtually any way they desire in the privacy of their own homes even if doing so is contrary to the natural moral law--which is nevertheless legal. No consideration has been given to the ways in which the common good of society will or will not be affected by the broad legalization of gay “marriage.” Advocates cite the short-term absence of social problems since gay marriages were first allowed in California as if long-term follow-up data is unnecessary in adequately evaluating the results.

What are the Goods of Marriage?:

No discussion has ensued regarding what the "goods" of marriage actually are--the primary purpose of which is the producing and rearing of children--or the sociological data which establishes that children are best raised in 2 heterosexual parent families. Obviously the fact that the US allows divorce on demand suggests that the primary purpose of marriage was not considered in fashioning contemporary divorce laws. For similar reasons, there is a movement to normalize childhood adoption by homosexual couples and single adults. This is in contradistinction to the fact that society has a vested interest in ensuring that the common good is enhanced.

What is in a Word?/Utopian Disreality:

Homosexual "marriage" and adoption is inherently incapable of contributing to the common good as that term has been traditionally used due to the incompatibility (lack of complementarity) which exists in the human nature's of same-sex couples. While various legal "arrangements" can be entered into by same-sex couples as they admittedly are by heterosexuals who contract civil (non-covenant) marriages, they can never be marriages in the traditional (where marriage symbolizes the coming together of male and female to produce another, the triad of which represents an image of the Sacred Trinity) sense where anatomic, physiologic and genetic factors are prerequisites. To arbitrarily define them as such in the law is to deny the very nature of what it means to be human, male and female. This reality will seem harsh to many but epistemologically it is undeniable.

Advocates of same-sex "marriage" if honest will be forced to admit that they desire to engage in such "arrangements" despite the inherent dis-reality involved. Doing so is to engage in positing a false reality, a utopian metaphysical unreality if you will, a worldview based not on the truth of what is but on the falsehood of what is not. In that regard the USSC (e.g. Justice Kennedy) has written essentially that each citizen is entitled to establish their own reality as if a human being has the power to determine metaphysical truths anymore than those of a physical nature as determined by universal physical laws. No one would posit the latter, but the former is currently being advanced by the USSC. The fact that Justice Kennedy was not harangued by the academic establishment for positing such an irrational concept should suffice to document that legal pragmatism has overtaken the US judiciary at least at the level of the USSC.

The American judiciary utilizing the theory of legal pragmatism is engaged in making legal what is proscribed by the natural moral law in so doing hoping to alter the “common morality” in such a way as to baptize it as if its advocates embraced the natural moral law and the notion of immutable moral norms which they of course do not. This is hypocrisy of the first order (first deny the natural moral law and once the civil law is changed behave as if it exists since whatever is legal is assumed to be moral).

What is the Ultimate Limit?:

Why should anyone believe that homosexual “marriage” is any more acceptable than any other currently illegal and immoral practice such as polygamy, pedophilia, pederasty, bestiality? Surely there are a not negligible number of individuals who desire to partake in these activities based on the crime statistics which are available--and with the marked deterioration in moral climate in the West there are likely to be more not less as time marches on. All of these practices however are contrary to the natural moral law as is homosexual practice and
homosexual “marriage.” Can we not assume that an equally powerful subset of our population will eventually advocate for the changing of these laws as well, and on what basis could it be denied if individuals came forward who wished to engage in these activities, label them marriage and derive marital benefits. According to the judicial theory of legal pragmatism any of these are worthy of being made legal for the exact same reasons being utilized to justify gay “marriage.”

The reality is that Americans simply refuse to engage in a debate about how to determine right and wrong. The unstated reality is that if a practice or behavior can be made legal, it is immaterial whether it violates the natural moral law or the wishes and belief structure of a majority of citizens. All that matters is that the special interest group who desires the change is satisfied. We prefer to settle all such issues by making laws which either allow or disallow certain practices based upon the exercise of raw political power alone. This is a formula for endless discord and polarization as nothing is ever definitively settled. It is nothing more that “might makes right” a form of judicially insured tyranny.

California’s Proposition 8 is an attempt to solve what is ultimately a moral philosophical problem through the use of the ballot box and the courts. The current trajectory is that homosexual marriage will eventually be legalized in all 50 states and codified in federal law. Given that the judiciary has embraced legal pragmatism, no other outcome is logically possible and therin lies the problem for opponents of gay "marriage." Americans wishing to prevent it will need to wage the battle where it actually belongs on the level of morality, a return to natural law based jurisprudence and not the law as understood through the prism of legal pragmatism. Unfortunately, that ground was surrendered long ago.