When do you know it’s over? When do you know that civilization has collapsed inwardly to such an irreparable extent that the next stop is barbarism? When is that Weimar moment?
Certainly, the legalization of abortion was one such moment, as barbarism is defined as the inability or unwillingness to recognize another person as a human being. Abortion is the denial of procreative sex by nullifying its effects, which are seen as accidental. If you have an accident and conceive a baby, you can just clean up the mess by aborting it.
Now we are experiencing other Weimar moments, which also deny procreative sex by accepting sodomy as a morally normative act. In Maryland, Gov. Martin O’Malley signed into law a bill legalizing same-sex marriage, effective next January. In Washington state, Gov. Christine Gregoire signed a similar bill that will take effect June 7. Gregoire said, “We tell the nation that Washington state will no longer deny our citizens the opportunity to marry the person they love.”
This is exactly the same language that actor and producer Rob Reiner used in justifying his March 3rd live-streaming production of a dramatization of California’s Proposition 8 trial, with Brad Pitt playing Judge Vaughn R. Walker. This was the decision that overturned Proposition 8, which added to the California constitution the definition of marriage as only “between a man and a woman.” This provision was challenged by several homosexual couples, the plaintiffs in the case, as a denial of due process and their right to equal protection under the law.
The original defendants in the case, the then-Attorney General Jerry Brown (now Governor) and the then-Governor Arnold Schwarzenegger, refused to defend their state constitution in court, even though Proposition 8 was passed by a majority of their citizens. For this, a Californian might think, they should have been impeached for dereliction of duty. Brown and Schwarzenegger should not have been able to choose which parts of California’s constitution they would uphold and which they would not. Their absence left an apparently less than competent volunteer team to defend the provision. (In a similar move, President Obama and his administration have chosen not to defend the Defense of Marriage Act, though it is the law of the land.)
In deciding the case, US District Chief Judge Vaughn R. Walker ruled that Proposition 8 is unconstitutionally discriminatory because marriage is not between a man and a woman.
Where could he have gotten this idea? It turned out that the judge himself is a homosexual. It is more than a stretch to believe that his life as a homosexual did not affect his decision concerning homosexual rights. Would a person engaged in the very activity that is being questioned be the best judge of its legal character? One of the most elementary principles of justice is that one should not judge a case in which one has an interest. But Judge Walker apparently did not feel the need to recuse himself, though it would seem obvious that he, as a homosexual, would have had a personal interest in the outcome.
District Court Judge James Ware heard arguments on the motion that raised this very issue, and denied it. In the decision, Ware explained that,
“Requiring recusal because a court issued an injunction that could provide some speculative future benefit to the presiding judge solely on the basis of the fact that the judge belongs to the class against whom the unconstitutional law was directed would lead to a Section 455(b)(4) standard that required recusal of minority judges in most, if not all, civil rights cases.”
There is a profound problem with this reasoning. It prejudges the case as a “civil rights” issue. It is not the “class” to which Walker belonged, but the behavior in which he engaged that was at issue in his conflict of interest. Do laws against murder discriminate against a “class” of murderers? Acts do not constitute class. They are voluntarily performed by individuals. It is the moral and legal character of an act that constitutes the matter at hand, not the class of the person performing the act. Let us say that the constitutionality of Prohibition was being decided. Would it be relevant to the judge’s competence to hear the case if he were an active alcoholic? Why, then, is it less relevant in this case, which was to decide the constitutionality of same-sex marriage, that Judge Walker was in a 10-year “relationship” with a partner, as he later admitted?
In fact, the judge was a beneficiary of his own ruling – not only in the direct sense that he could now marry his “partner” if he so wished, but in the larger rationalization of homosexual acts as being morally normative. His 136-page ruling can be seen as a bald act of self-justification, which he now enforces upon the broader public as legally mandatory.
This, of course, is a major misuse of law. In The Ethics, Aristotle noted what impels it: “Men start revolutionary changes for reasons connected with their private lives.” People who live morally disordered lives – and a life centered on homosexual acts is morally disordered – must always search for rationalizations that permit them to continue their behavior. Otherwise, their conscience rebels (see The Culture of Vice). Judge Walker’s revolutionary ruling was indubitably tied to his private life, the rationalization for which he then required everyone to accept – according the U.S. Constitution, no less.
Let us examine the rationalizations in his judgment, which have now been shared by the 9th Circuit Court appeals panel, which supported his ruling in a split (2-1) decision issued in February. (The full 9th Circuit Court of Appeals has been asked to review this ruling.)
Judge Walker declared that “Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license.” This, he contended, is wrong because marriage is a basic right.
However, one has a “right” or is “free” to marry only in so far as one is capable of being married. One does not have a right to a vocation in life that one cannot perform the duties of. Does one have the “right” to be a fireman if one cannot quickly climb a ladder and lift a heavy hose? Does one have a “right” to serve in the military if one cannot physically meet its demands?
What, then, might be the minimal demands of marriage which one must be capable of performing? One of those martial duties, as in the two examples above, is actually physical, though its implications and true meaning extend far beyond the merely physical.
Common law holds that a marriage is not valid until it is consummated. What does consummating a marriage mean? It means and has always meant by law an act of vaginal intercourse between the husband and wife.
If this act does not take place, the marriage can be legally declared a nullity. Until consummation, it is subject to annulment. Therefore, becoming one flesh is not optional for a legally valid marriage. If one is incapable of consummating a marriage or simply unwilling to do so for any reason, there can be no marriage, and therefore the “right” to it is irrelevant. Similarly, if one cannot perform as a fireman, the right to be a fireman is also irrelevant.
The elephant in the room: sodomy
How did Judge Walker get around this? By ignoring it – and with this bit of legerdemain: he stated that the ability to produce offspring has never been a prerequisite for granting heterosexual couples marriage licenses. This, of course, is true, but he segues from it to the clear implication that an act of sodomy can therefore replace vaginal intercourse to consummate a marriage. He implies this, though the word “sodomy,” the elephant in the room, is never mentioned in his decision.
He was wise, if not entirely honest, in not using the word, because it has never before been thought that sodomy could legally consummate a marriage, regardless of the fertility or infertility of the couple. Many state laws forbade sodomy. Since some even included prohibitions of it within marriage, it was inconceivable that marital consummation could have meant anything but vaginal intercourse.
For homosexual couples, the marital act is physically impossible – the pieces don’t fit – and the attempt to ape it through sodomy is hygienically compromised and incapable in any circumstances of generating new life. For these reasons, among many others, common law has held through the centuries that marriage can only be between a man and a woman.
In light of this, it is astonishing that Judge Walker could state in his conclusion that “Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license” (my emphasis). Is it not rational to state that those incapable of consummating a marriage cannot in fact be married? It seems quite irrational to say otherwise – that, against all legal tradition or any notion of natural law, marriage can be valid without its consummation. This is a completely novel legal notion.
Is a ban discriminatory?
Judge Walker’s big issue is the denial of equality and the discriminatory nature of Proposition 8. However, everyone is equal before this law, because no man and woman can be denied marriage for reasons of race, creed, or color. No extraneous issues can be brought to bear outside of the qualification that it takes a man and a woman to marry – certainly not matters of class, as was alleged by the Ninth Circuit review panel. Homosexuals and lesbians are also equal before this law in so far as they are willing, respectively, to find a woman or a man with whom to marry. Proposition 8 did not single out anyone; it simply defines marriage as marriage has always been defined. Like any law, it distinguishes between those who qualify and those who do not.
Similarly, because of the principle of equality, everyone has the right to consent in the manner in which they are governed. However, in order to exercise this right – expressed as the right to vote – one must meet the qualifications of voter registration as to age, residence, etc. If one is unwilling to register or has not reached the proper age, one cannot exercise the right. A child cannot; neither can an insane person. In some states, neither can felons.
Contrary to Gov. Gregoire’s and Rob Reiner’s effusions that that everyone should have the right “to marry the person they love,” relevant disqualifications for marriage include consanguinity – brothers and sisters, fathers and daughters, cannot marry no matter how much they love each other. Neither can children, the insane, or those who are already married. Could anyone reasonably argue that children, the insane, bothers and sisters, or the already married are not equal before the law regarding marriage? Because you cannot meet the stipulations of a law does not mean you are unequal before it. This makes specious Judge Reinhardt’s claim on the appeals panel that “Proposition 8 singles out same-sex couples for unequal treatment by taking away from them alone the right to marry.” Hardly, all they have to do is find someone of the other gender who is not an immediate relative, already married, or a minor, and off they could go, like anyone else. However, they don’t want to be like anyone else. They wish a special law for special people. This is the antithesis of the rule of law.
The law that forbids drunk driving, for instance, applies equally to everyone, including alcoholics. Because an alcoholic is more likely to break this law, or because it may be harder for him or perhaps even impossible to observe, does this mean the law is a violation of his due process and equality before the law? What would Judges Walker and Reinhardt say? If they employed the same logic as in their Proposition 8 rulings, they would say that alcoholics are being discriminated against as a “class” and that, therefore, the law against drunk driving is unconstitutional. The remedy, of course, would be a special statute or ruling to allow alcoholics to drive drunk. Why is this proposal any less absurd than setting up a special class of marriage for those who refuse or are unable to perform the marital act? (And what about bi-sexuals? By this logic, shouldn’t a bi-sexual be allowed to maintain simultaneously consummated and unconsummated marriages?)
Judge Walker, however, took greatest umbrage at the “belief that opposite-sex couples are morally superior to same-sex couples” or “the belief that a relationship between a man and a woman is inherently better than a relationship between two men or two women.” On what could such a “belief” be based? He suggested either “animus toward gays and lesbians,” which of course is inadmissible, or “moral disapproval of homosexuality,” which very well might be admissible, depending on its relationship to the common good.
Echoing this, Judge Stephen Reinhardt wrote for the appeals panel that, “Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples.” Neither of these judicial bodies spoke to the relative moral worth of the conjugal act as against that of sodomy. This seems an odd omission, as the judgment of their moral worth would be precisely the basis upon which to establish their “dignity,” or lack thereof.
Smuggling in a new morality
However, Walker dismissed morality altogether as an insufficient basis for legislation. This is in sync with his purported libertarian beliefs. He concluded that “Proposition 8 finds support only in such [moral] disapproval,” and is therefore unconstitutional. However, law is by its nature moral, as it stakes its claim to make something better, rather than worse. “Better” and “worse” are relative terms ultimately measured against what Aristotle called “the good,” the end toward which the human soul is ordered. If you do not think in terms of what is “good” for man, you cannot conceive of how society’s political order ought to be arranged or how man’s behavior should be legitimately regulated. Without morality, law is reduced to the rule of the stronger.
While dismissing the morality of his opponents as inadmissible, Judge Walker went on to legislate his own stealth morality. He averred, in effect, that it is wrong – in other words, immoral – to deny homosexual and lesbians a “right” to marry, because this is a violation of the principle of equality. Now, equality is a moral principle. Therefore, Judge Walker completely contradicted himself in asserting that morality is an insufficient basis for the law, when morality is exactly what he used to justify his decision in changing the law. Is this hypocritical or simply ignorant?
On the other hand, Judge Walker never addressed what might be immoral in the acts of homosexuals that would lead others to the attitude that heterosexual marriage is “morally superior” to same-sex marriage. He put it all down to changing attitudes. He called the exclusion of same-sex couples from marriage “an artifact of a time when the genders were seen as having distinct roles in society and marriage.” Being a good historicist, he stated, “That time has passed.” In fact, he insisted that same-sex partners can do anything in marriage (except consummating it?) as well as heterosexual couples, including child-rearing.
As a parent, this makes me wonder. When my children were younger, they used to think that, if my wife and I removed our wedding rings, they would disappear. We never told them that. Yet they instinctively understood that their very existence depended upon the love between my wife and me. They sensed that they were incarnations of this love, and they therefore concluded that, if it were broken, they would disappear.
For all of Judge Walker’s fulminations about the absolute equivalency of heterosexual and homosexual parenting, the children raised by two males or two females would never have that instinctive sense about the beginnings of their existence in the love of their parents – for the obvious reason that they could not originate in the relationship between two males or two females. This will leave these children with the lifelong quest for their real origins, or suffering from their being unable to discover them and wondering why at least one of their real parents did not want them. Even the laudable love of adoptive parents cannot overcome this instinctual problem.
A denial of reality
Another of Judge Walker’s extraordinary rationalizations is that “the evidence shows conclusively that moral and religious views form the only basis for a belief that same-sex couples are different from opposite-sex couples” (emphasis added). This is a startling claim. How about a biologist? Can he tell the difference? Or a proctologist? How about a gynecologist? Might they not notice some slight difference between the two?
Judge Walker’s decision was not only irrational; it was a denial of reality. Socrates said that the worst thing a person could do was to lie in his soul about what is. This is such a lie. It denies what is between a man and a woman in marriage. As bad as this is for the poor souls who have organized their lives around a moral disorder, it is even worse for the political order that publically adopts it for its own – since it is marriage properly understood that is essential for civilization’s survival. Publicly enforced lies about what is are evil. That is why this is a Weimar moment.
These moments are flares in the night, distress signals, calls for moral rescue before a tsunami engulfs all memory of moral order. Signals have been sent. They still hang in the night sky, the last illumination before bearings are lost. In the darkness that descends, who will answer the cries for help? Will it be those who have been told to be less than men and women in marriage?
Robert Reilly has worked in foreign policy, the military, and the arts. His most recent book is The Closing of the Muslim Mind: How Intellectual Suicide Created the Modern Islamist Crisis.
INTERESTED IN SAME-SEX MARRIAGE? Check out MercatorNet’s new focus blog, Conjugality.