Wednesday, August 18, 2010


One thing I look out for in politics is people saying something that makes no sense.  Okay, people say things that make no sense all the time, but I'm referring to an argument that becomes a stock political weapon in one side's arsenal.  To take an example, there is the idea that prohibiting gay marriage is contrary to the Constitution.

I want to make it clear one can make a strong argument in favour of homosexual marriage.  I'm against it, but I see an argument on the other side and I'm willing, even interested, to engage in debate about it.  But for a judge to rule, as Vaughn Walker did recently, that not allowing homosexual marriages is a violation of constitutional rights, is contrary to all reason.  Until recently, no state in America had ever recognized homosexual marriages.  Wouldn't that mean, by Judge Walker's logic, that the entire country has been in violation of the Constitution for the entire history of our nation?  Or at least since the 14th amendment was passed over a century ago?  Obviously, no one has understood the Constitution as requiring homosexual marriages until now, so it seems reasonable to me that it can't possibly have meant that.

It could be the case that a document might mean something that no one acknowledges, but it would have to be much more explicit.  Since there is nothing in the Constitution about marriage, the only way to make homosexual marriage a Constitutional right is to draw inferences, and if no one has ever drawn those inferences before, they clearly were not intended to be there.  One could also argue that standards have changed, and that what did not appear to be a right 200 years ago has become one now.  That kind of logic can make sense, but only if it is applied to obvious cases, e.g. if thumbscrews had been a common punishment in the 19th century, one could say that they are now "cruel and unusual punishment" because no one does it and the vast majority would find it cruel.  But to say that such a contentious issue as homosexual marriage has become a right by "evolving standards of decency" (in the notorious words of the majority Supreme Court opinion in Trop v. Dulles, 1958) is a way of depriving the Constitution of all meaning.  There clearly is no consensus on whether homosexual marriage is even permissible, much less a human right, so Judge Walker's ruling is nothing more than a judicial fiat that bears no relation either to the Constitution or to contemporary standards of decency.  Even if 80% of people thought that homosexual marriage should be a right, I would argue that it would still not count as such under the Constitution, but rather should be left for legislatures to decide.

The other problem with arguing that homosexual marriage is a Constitutional right without any historical framework is that it opens too many questions about what is really a right.  Judge Walker and his ilk justify the permissibility of homosexual marriage on the grounds that there is nothing necessary about marriage being defined as the union of a male with a female.  If you take a totally nihilist, ahistorical perspective, I suppose he is right:  I don't know that anyone has made a compelling moral argument for traditional marriage, and it would be difficult to convince everyone in any case.  But why stop there?  Why should a marriage be limited to two individuals?  There are plenty of people who would opt for polygamy if that were an option.  Or why limit it to adults?  Every state has a minimum legal age for marriage, usually around 16 with parental consent, 18 without.  Why should we prevent consenting children of age 14, or 12, or 10, or 8, from getting married?  Much of Hillary Clinton's policy thrust has been toward making children full legal actors, so it's not like this is an argument that would come only from people in the backwoods.  Why stop there?  Why not allow people to marry animals?  I'm sure there are a few nuts who would actually do that, and animals increasingly enjoy certain rights under the law anyway.

My point is not that homosexual marriage means we would have to allow polygamy or the marriage of children, only that there is no compelling reason why, once we declare "marriage" a generic term for a certain legal status between individuals, that we should limit the newly-minted right to get married to homosexuals.  There is, therefore, no basis for inferring a right to homosexual marriage where it has never previously existed.  Contrary to Judge Walker's logic, marriage is implicitly between one male and one female until someone makes a compelling argument that it is not -- and unless 99% of people agree with the argument, the only convincing way to create a new right is to pass a law, or a Constitutional amendment, that declares it.  That's what a democracy is all about, after all.  Not that the majority gets to oppress the minority, but that a group of people have come together with certain established principles such as the right to free speech and the right to bear arms, and have left other principles to be decided by majority decision.  The majority is constitutionally limited not to violate those rights commonly agreed upon, but it is not required to respect rights that some group of people decide they are entitled to.

I want to emphasize again that my argument here has nothing to do with the merits of homosexual marriage as such; that's a totally separate issue.  This is about a judge pretending that the right to homosexual marriage exists in the Constitution when it plainly does not, and could not if our legal system is to make any sense.  It is important not to present every argument that one's opponents make as absurd prima facie, but it is also important to point out those arguments that make no sense and draw attention to their absurdity.  Then we can get down to discussing the real issues.

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