Ruth Speaks Out

This blog is maintained by the Ruth Institute. It provides a place for our Circle of Experts to express themselves. This is where the scholars, experts, students and followers of the Ruth Institute engage in constructive dialogue about the issues surrounding the Sexual Revolution. We discuss public policy, social practices, legal doctrines and much more.

The Prop 8 Trial and the New Theory of Politics

The Prop 8 Trial and the New Theory of Politics “They reject the political determination of will by the people… the idea that the act of voting is an act of national will is decisively rejected.  The plebiscite is to express and enforce the concordance between the objective will of the people embodied in the (leader) and the subjective convictions of the people. The plebiscite is a declaration of loyalty…, not an announcement of an individual's will.”  From The New Science of Politics, by Eric Voegelin.  Since the beginning of my involvement in the same sex marriage debate, I have tried to explain the wider ramifications of removing gender from marriage. Ted Olsen, attorney for the plaintiffs in the Prop 8 trial, claims that he can see no rational reason for restricting marriage to opposite sex couples.  Since he can’t imagine any reason, he supposes that there are no reasons.  Hence, he concludes, that animus against gays and lesbians is the only possible explanation for the adamant opposition to redefining marriage.   Poor Mr. Olsen seems unable to imagine this entire line of argument that looks beyond the immediate consequences of same sex marriage, to the wider sociological and political ramifications. The advocates of same sex marriage are in fact, bringing into being something much more extensive than “marriage equality,” or “opening marriage to all.”  In fact, redefining marriage will put into place a whole series of incentives, which will in turn put into motion a far-reaching set of changes.  The advocates of same sex marriage have been distinctly unwilling to take this seriously. (You would think that after losing election after election, they would make an effort to address the arguments of their opponents. The fact that they have not, is an arresting fact, which requires an explanation in and of itself.  More on that later.)               Let’s start with the changes to the political order that are coming in the wake of the movement for “marriage equality,” and indeed, of the Prop 8 trial itself.  Advocates of same sex marriage do their best to wrap themselves up in the American flag, and try to connect their movement with the traditional ideals of our people.  However much they may attempt to do this, they are in fact initiating political ideas that have no precedent. They cite the Civil Rights movement that brought voting rights to African Americans and ended legally sanctioned segregation.  It is instructive to note how few African Americans share this view. Look back at the roughly 70% of African American voters in California who voted Yes on Prop 8.  Look now to the efforts in the District of Columbia to preserve the gendered definition of marriage. That effort is led by African American pastors against the political classes of the District. But the original (and real) Civil Rights movement succeeded because people were really persuaded that race is an irrelevant characteristic for full participation in the political, economic and civic life of the nation.  By contrast, no one can seriously maintain that marriage is a necessary condition for participation in civic life, or that an unmarried person is a second class citizen in any meaningful sense. No one can believe that individuals with same sex attraction are unable to participate in the economic, political and civic life of this country, with or without the redefinition of marriage. The vast majority of Americans are persuaded that sex is in fact relevant to marriage and its purposes.  They believe that marriage without gender or sex is an institution without purpose or meaning.  This is why so many people are reluctant to strip sexual differentiation from the legal institution of marriage.  The American public is persuaded that the demands of fairness and decency are satisfied by legal provisions that solve the practical problems same sex couple may face.   Hence, Civil Rights movement utterly fails as a precedent. The advocates of same sex marriage have completely failed to convince the American public that redefining marriage is a civil right.  Rather than try to persuade people that sex is an irrelevant characteristic for marriage, the advocates of same sex marriage berate their opponents and dismiss their arguments.   And this is where they are in the process of redefining the political order itself. Advocates of same sex marriage are so convinced of the rightness of their cause, they believe they only have to accept elections when they agree with the outcome of the elections.  This trial itself is not just a trial of Proposition 8. The voters of California themselves are on trial, for having the temerity to vote in favor of natural marriage.  When Ted Olson calls the campaign managers of Prop 8 to the witness stand, he is, in effect, calling the voters of California on to the stand. It is every person who voted yes on 8 who is on trial here. Make no mistake about that.   Perhaps now you can see why I chose the quotation from Eric Voegelin for the opening of this column. Let me give you the full quotation, without the elipses, and note that Dr. Voegelin wrote this in 1938. They (the theorists of German National Socialism and Italian Fascism, both drawing on the vocabulary of German Romanticism) reject the political determination of will by the people-- again especially in the German theory, where the Fuhrer is the only carrier of the people's will. In the teaching on the plebiscite, the idea that the act of voting is an act of national will is decisively rejected.  The plebiscite is to express and enforce the concordance between the objective will of the people embodied in the Fuhrer and the subjective convictions of the people. The plebiscite is a declaration of loyalty to the Fuhrer, not an announcement of an individual's will. … The god speaks only to the Fuhrer, and the people are informed of his will through the mediation of the Fuhrer. (66-7) Voting invalid unless it conforms to the “national will:” this is not the kind of political system we want to live under.  From The New Science of Politics, Eric Voegelin, originally written in 1938, reprinted in Modernity Without Restraint, Volume 5 of The Collected Works of Eric Voegelin,  edited with an introduction by Manfred Henningsen (Columbia, Missouri: University of Missouri Press, 2000).

Long run consequences of same sex marriage: who knows?

I have been arguing for some time that we need to take the long run consequences of same sex marriage seriously. I've argued that same sex marriage will put incentives into place and set forces into motion that cannot be easily undone or predicted. In particular, I've argued that same sex marriage will undermine the principle that biology is the basic way we determine parentage, will marginalize men from the family, transformed marriage from a public institution into a private institution, and finally, will empower the state.  Ahhh, no big deal! what's a few small things like changing the relationship between the state and the individual and parents and children, when a grand principle like EQUALITY is at stake.  so, now, it is interesting to see this tidbit from the AP:
Under questioning today in teh Prop 8 trial, plaintiffs' witness, Harvard historian Nancy "Cott conceded under cross-examination that she couldn't predict the consequences for society of same-sex marriage."
No duh.  Couldn't, or wouldn't?

The Dangerous Olsen Boies Precedent

The Prop 8 trial that starts on Monday is not simply about overturning Prop 8. It is also about: 1. whether we will have same sex marriage nationwide, 2. whether the losers in an election can go into court to overturn it 3. whether the courts can demand that participants in a political campaign have to reveal their private correspondence, and many other issues.  My new article up on Mercator Net deals with a couple of these issues.  As it happens, I have a personal involvement in the case.  And, within a few hours of this article being posted on Mercator, the hysteria has begun in the comments section. see for yourself.
Ted Olsen and David Boies want to convince the court that the alleged anti-gay bias of Proposition 8 supporters should invalidate the election. But first, they have to find some such bias. This is why Olsen and Boies sought the trial court’s permission to demand confidential campaign documents. They want free reign to rummage around through the Prop 8 campaign’s computers and filing cabinets, looking for evidence of this supposed meanness. The trial judge had ruled that Prop 8 proponents had no First Amendment privilege, and therefore had to hand over all communications among members of the campaign and their contractors.

Speaking of the Iowa Fiasco...

Regular readers of my blog and newsletter will recall that I analyzed the Supreme Court of Iowa's ruling that gendered marriage violates the state constitution. You could pretty much predict how the court would rule, by the decisions they made about what counted as permissible evidence.
the trial court refused to admit five out of the eight expert witnesses presented to them. These experts covered a wide range of issues, including the ethics of artificial reproductive technologies, the rights of children to be raised by their parents, the procreative purpose of marriage, the history and meaning of marriage, and the significance of gender differences in parenting. The trial court refused to hear the testimony of Allan Carlson, author of five books on the history of marriage, Margaret Somerville, founding director of the McGill University Centre for Medicine, Ethics and Law, and Stephen Rhodes, political science professor at the University of Virginia. This is the very sort of evidence that courts in other states, such as New York, have found persuasive. After refusing to hear their testimony, the court had the nerve to declare a whole list of facts were “undisputed.” Instead of listening to both sides and deciding impartially, the court lifted the “facts” directly from the brief of the same-sex “marriage” advocates.
The Iowa Supreme Court is the very court that made this infamous statement in a footnote:
“The research appears to strongly support the conclusion that same-sex couples foster the same wholesome environment as opposite-sex couples and suggests that the traditional notion that children need a mother and a father to be raised into healthy, well-adjusted adults is based more on stereotype than anything else."
The court offered no evidence for the remarkable claim that believing kids need a mother and a father is based on stereotype.  And if you took that statement out of the context of the same sex marriage debate, and tried to offer it as a general proposition, it is certainly false.

Maggie's take on the Prop 8 trial.

In her syndicated column, my friend and colleague Maggie Gallagher makes these points about the upcoming Prop 8 trial. 1. The constitutionality of Proposition 8 should be a matter of law, not a matter of facts. But Judge Walker has ruled that they will have a trial about the facts. Ordinarily, findings of fact by a lower court, cannot be overturned by a higher court.  So the more of his opinions he can stuff into the box labelled "fact," the harder it will be to overturn. 2. The court has ruled that the private correspondence of the campaign, revealing the "motives" of the campaign are a fair subject for the trial. This is an outrage: the motives of the campaign or the voters should not be on trial. 3. The judge has ordered that the trial be televised, in defiance of federal rules. Bottom line: the voters of CA are on trial for having the temerity to vote against same sex marriage. Money quote:
After Prop. 8, gay couples continue to enjoy unmolested all the legal civil rights of marriage under California law through civil unions. Who will stand up for the core civil rights of the people of California and the rest of the USA to participate in democracy without fear? Certainly not Judge Vaughn Walker.

Fair Trial for Prop 8?

Judge Walker's decision to televise the Prop 8 trial gravely prejudices the outcome of the trial,  Bench Memos on National Review Online.
In addition to its illegality (see Part 2), Judge Walker’s televising order threatens unfair and irreparable—and wildly asymmetric—prejudice to the parties and witnesses supporting Proposition 8.  For that reason, his order should be vacated before trial begins next Monday.*...
Given all the harassment of Proposition 8 supporters that has already occurred, “it is not surprising,” as counsel’s December 28 letter puts it, that “potential witnesses have already expressed to [counsel] their great distress at the prospect of having their testimony televised” and that “some potential witnesses have indicated that they will not be willing to testify at all if the trial is broadcast or webcast beyond the courthouse.”... plaintiffs’ declared trial strategy (see point 3 of Part 1) is to show that the sponsors of Proposition 8 who testify as witnesses are contemptible bigots—and that strategy will have the predictable consequence of inciting harassment and abuse of these witnesses and their counsel.  By contrast, the attorneys defending Proposition 8 have no litigation interest in showing that particular opponents of Proposition 8 are, say, really interested in destroying marriage altogether, or are anti-religious bigots, or are “irrational.”  Their task, rather, is merely to show that Proposition 8 is rationally related to, or otherwise sufficiently advances, legitimate governmental interests. 


I am not contending here that supporters of Proposition 8 are more genteel than their opponents.  I am merely making the elementary point that the posture and related trial strategies of the two sides virtually guarantee that televising the proceedings will have a dramatically asymmetric effect on the abuse and harassment that witnesses and other trial participants anticipate and experience.

Given the number of illogical and biased rulings Judge Walker has already made, I'm wondering whether a fair trial is even possible. Has he already made up his mind about this case?  This sounds like it it going to be a replay of the fiasco in Iowa, where the judges had plainly already made up their minds, in advance of hearing the case.

NJ defeats same sex marriage bill

It wasn't even close: 20-14 in the NJ Senate. My colleague at the National Organization for Marriage, Brian Brown, predicted this.

8.5 New Year's Resolutions to help marriage

Ruth Institute newsletter subscribers got my New Year's Resolutions, 8.5 ways you can help marriage in 2010. Hint: if you aren't a Ruth Institute newsletter subscriber, you can subscribe here.  It is totally free.  So here are 8.5 suggested resolutions for the new year of 2010.
1. I will speak up for marriage, and for sexual integrity to my family and friends. If I’m not sure what to say, I’ll find something from the Ruth Institute website or newsletter to send to them. But I will speak up. 2. I will “catch someone doing something right.” When my pastor speaks out for life or for marriage, I will thank him. When a company does the right thing, I will thank them. 3. I will hold the media accountable for what they say about marriage, family and human sexuality. The next time I read something biased, I will contact the editor or author, and respectfully suggest they contact the Ruth Institute for a more balanced perspective. 4. I will post something from the Ruth Institute newsletter on my facebook page every week. 5. No more, will I give reflexively to a college, just because I went there, or because my kids went there. I will pay attention to what goes on and encourage my alma mater to do the right thing. 6. I will tell young people about the Ruth Youth facebook fan club. 7. I will support young people participating in Ruth Institute activities, by telling them about it, by forwarding newsletters to them, or by sending a contribution. 8. I will make an effort to learn something new about marriage each week. 8.5 I will share what I’ve learned with at least one friend! Let 2010 be the best year ever for promoting lifelong married love! 
Don't forget:  if you aren't a Ruth Institute newsletter subscriber, you can subscribe here.  It is totally free.

The all encompassing state and same sex marriage

More from Douglas Farrow's Touchstone article. BTW, the book he references, A Nation of Bastards is available from the Ruth Institute Reading List, along with a bunch of other good books.  I have been making this point for some time: the immediate impact of same sex marriage is very far from its full long-run impact, very much as "reducing the cost of divorce for people in bad marriages," was a long way from being the main impact or final impact of eliminating the fault basis for divorce.
To make matters very much worse, the parens patriae power has recently received an enormous boost from another feature of the contraceptive society: same-sex “marriage.” Though most people have not yet realized it, the advent of same-sex marriage has transformed marriage from a pre-political institution conferring “divine and human rights,” as the Roman jurist Modestinus put it, into a mere legal construct at the gift and disposal of the state. The legal terrain has thus changed dramatically, along with the cultural—something I have tried to show in a little book called Nation of Bastards. The family is ceasing to be what the Universal Declaration of Human Rights confesses it to be, viz., “the natural and fundamental group unit of society.” Replaced by a kaleidoscope of transient sexual and psychological configurations, which serve chiefly to make children of adults and adults of children, the declining family is ceding enormous tracts of social and legal territory to the state. At law, parent-child relationships are losing their a priori status and privilege. Crafty fools ask foolish fools, “What harm does same-sex marriage do to your marriage, or to your family?” The truthful answer is: Same-sex marriage makes us all chattels of the state, because the state, in presuming to define the substance rather than the accidents of marriage, has made marriage itself a state artifact. Those who have trouble connecting the dots here—which lamentably includes many defenders of the traditional institution—should take time to consider the fact that the new “inclusive” definition, in striking procreation from the purview of marriage, has left both parents and children without a lawful institution that respects and guarantees their natural rights to each other. Opening up marriage in principle to non-generative unions really means closing it in principle to the inter-generational interests on which it has always been based. From now on, the handling of those interests will be entirely dependent, legally speaking, upon the good graces of the state. Every citizen will stand naked before the state, unclothed by his most fundamental community, unbuffered by any mediating institution with its own inherent rights. Nor should it be overlooked that, what the state has the power to define, it has the power to define again and again, and even to dispense with. Admittedly, even the state has not yet fully connected the dots, but that is happening with remarkable rapidity, as concurrent moves in education demonstrate. States and international agencies are increasingly prone to argue that children have the right to a state-directed education and that this right must be protected by the state against the interference of parents. The logic is not difficult to follow: If marriage is procreative, it is also educative; but if it is not procreative, it is not educative either—educative rights and responsibilities are up for grabs, and it is the state that will do the grabbing. The pillar that is the family appears to have cracked nearly through.
Read it all here:  Touchstone Archives: The Audacity of the State.

The Audacity of the State

Douglas Farrow makes the argument that far from having "separation of church and state," the modern world has acheived precisely the opposite. By melding the functions of civil society into the state, the state has become de facto, the religion of the society, and one that brooks no opposition. The two major area where this has occurred are the natural family and the religious community.
The natural family unit confronts the state as an entity that claims rights not granted by the state but brought to it—rights the lawful state is obliged to recognize and respect. The religious community likewise claims rights and liberties that derive from a source other than the state, a source that transcends and relativizes the state.... The ascendancy of the state over civil society, which it ought rather to serve, is virtually guaranteed where the state exercises full control over education—particularly if the goal of education, as one professor boldly asserted in a recent McGill forum, is to release children from the control of their parents. In America, one notes, there have long been advocates of the still more radical idea that children should be regarded as the state’s property, to be educated on a compulsory basis according to state needs and requirements. That is a thesis likely to be advanced with renewed urgency as the implications of our declining birthrate begin to be grasped.... the normalization of divorce—one of the most significant features of our contraceptive culture—has ever more deeply insinuated the state into the child-rearing process and so into the sphere of the family. The “great and pernicious error” against which Pope Leo XIII warned in Rerum Novarum has thus gradually become the norm; namely, “that the civil government should at its option intrude into and exercise intimate control over the family and the household.”...
Read it all here:  Touchstone Archives: The Audacity of the State.

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