In 2009, California’s Proposition 8, a constitutional amendment restricting marriage to one man and woman, was challenged in the US District Court for the Northern District of California before Judge Vaughn Walker. Since the State Attorney-General and the Governor had refused to defend their State’s own constitution, other groups stepped in. They hired attorney Charles Cooper to plead their case.
According to a Wall Street Journal profile, Cooper had “a record of championing conservative causes, including preserving gun rights and limiting affirmative action and gay rights.” He had been a clerk for a US Supreme Court justice and had worked in the Justice Department during the Reagan administration, eventually becoming the head of the Department’s Office of Legal Counsel in 1985. He had more than 25 years experience in government and private practice, and had appeared several times before the United States Supreme Court.
Cooper was a Top Gun, the ace card for natural marriage, the legal equivalent of a Navy Seal. So why did he keel over and play dead when Judge Walker hit him with a BB gun?
In a pre-trial hearing, the judge asked Cooper how the State’s interest would be harmed if homosexual couples were allowed to marry. Cooper’s answer was, “Your honor, my answer is, I don’t know. I don’t know.”
This stammering response was jubilantly pounced upon by advocates of same-sex marriage. “Opponents of gay people’s freedom to marry still can’t give a real answer to the key question,” wrote the executive director of Freedom to Marry in the New York Times.
It should have been an easy question to answer, but Cooper didn’t learn from his misstep. Last year, in a recent Supreme Court brief, he said the reason he didn’t know was because same-sex marriage is “a very recent innovation” whose impact “can’t possibly be known now.”
However, it is can be known if you know what marriage is. Just as you can predict the effect of counterfeit currency on sound money, you can know the effect of homosexual marriage on real marriage: it devalues it. What Cooper said was the equivalent of the Secretary of the Treasury saying that he cannot tell the difference between sound currency and counterfeit and therefore has no way of knowing if flooding the market with counterfeit currency would lead to inflation.
It was always a mystery to me as to why Cooper was not better prepared to make the case — why he neglected the essentials in his arguments. But now we know.
Last week Cooper told the Washington Post, “My daughter Ashley’s path in life has led her to happiness with a lovely young woman named Casey, and our family and Casey’s family are looking forward to celebrating their marriage in just a few weeks.”
How could this be? How could one of the primary litigators tasked with the defense of marriage now espouse and celebrate homosexual marriage? Cooper states that, “I told Ashley that what matters most is that I love her and she loves me.”
Indeed. However, as Edith Stein said, “Do not accept anything as love which lacks truth.” Love contains an obligation to the truth – especially transcendent truths regarding the ordering of our souls to the Good. Is this Good not compromised by homosexual marriage? Is this not the fundamental question regarding it? Did not Cooper ask it? Apparently not. Cooper says, “. . . my views evolve on issues of this kind the same way as other people’s do, and how I view this down the road may not be the way I view it now, or how I viewed it 10 years ago.”
Let us be clear as to how one can “evolve” in this way. What are the grounds of this kind of evolution? There are two bases for it: one is called historicism, the other positivism.
Historicism claims that truth is conditioned by and contingent on history. In the sense that history changes, so does truth. We can only see the “truth” of our own time, not that of past or the future. There are no trans-historical truths rooted in the transcendent. In other words, all we really have are opinions. This seems to be the view of Justice Anthony Kennedy, who told a group of law students last year that, “The nature of the injustice is you can’t see it in your own times.” The corollary of this has to be that you cannot see the nature of justice in your own times either.
What does that leave us with? The second view, positivism, states that truth is basically what we say it is, and all we can know is what we say. There is nothing undergirding it in a metaphysical fashion that can substantiate it as truth or falsehood. By positing it, we make it true. Truth becomes the object of the will, rather reason.
In his book The Audacity of Hope, President Barack Obama stated the grounds for his evolution, as he too evolved toward acceptance of homosexual marriage: “Implicit in [the Constitution’s] structure, in the very idea of ordered liberty, was a rejection of absolute truth, the infallibility of any idea or ideology or theology or ‘ism’, and any tyrannical consistency that might block future generations into a single, unalterable course.” In other words, the truth does not set you free; the truth enslaves you. Therefore, freedom requires the rejection of objective truth, which by definition is immutable.
This makes rather tricky an accurate understanding of the Declaration of Independence, which claimed to be based upon transcendent, immutable truths that were, in turn, partially embodied in the Constitution.
My former professor from Claremont Graduate University, Harry V. Jaffa, noted several decades ago that, “the crisis of American constitutionalism—the crisis of the West—lies precisely in the denial that there are any such principles or truths [applicable to all men and all times]. It is no less a crisis in the heart of American conservatism than of American liberalism.” Without these principles Western nations could not “have a rational basis for the objective truth of their convictions instead of viewing them as arbitrary opinions or historical contingencies.”
Jaffa was prescient in pointing out that this crisis existed in conservatism, as well. Curiously enough, Jaffa had an argument years ago with Cooper over these very issues. It exposed, at that early date, the grounds of Cooper’s ability to “evolve.” In ridiculing Jaffa’s views of natural law as the foundation of the United States, Cooper wrote, in what could be a paraphrase of Obama’s argument, that, “The American people are thus enslaved to the ‘moral and political philosophy’ of the founders, powerless to redefine their ‘legal and moral personality.’”
But what if the moral and political philosophy of the founders was true and serves as the sure foundation of freedom? Might not the redefinition of that philosophy endanger the very freedom founded upon it? Curiously, Cooper asserted that, because it fundamentally limits what can be changed, “Jaffa’s natural justice theory of constitutional interpretation is thus the very negation of the idea of self-government.” No, it’s not; it is its foundation. Without a basis in the “Laws of Nature and of Nature’s God,” self-government degenerates into willful majoritarianism – or what Benedict XVI called totalitarian democracy.
Very tellingly, Cooper was critical of Jaffa’s view that it would be inherently contradictory to seek constitutional support and protection for “sexual orientation” because, “[S]odomy and lesbianism…are unnatural acts and, being unnatural, the very negation of anything that could be called a right according to nature.” Why are such acts unnatural? Because they are neither unitive nor procreative – thus frustrating the two natural, inbuilt ends of human sexual powers. Only a historicist or a positivist could assert a right based upon these acts.
Cooper’s clear lack of the natural law grounding made him a weak advocate for the defense of marriage. Here is what he suggested to the Supreme Court in the Hollingsworth v. Perry case as a defense of California’s Proposition 8.
“But consider the California voter, in 2008, in the ballot booth, with the question before her whether or not this age-old bedrock social institution should be fundamentally redefined, and knowing that there’s no way that she or anyone else could possibly know what the long-term implications of – of profound redefinition of a bedrock social institution would be. That is reason enough, Your Honor, that would hardly be irrational for that voter to say, I believe that this experiment, which is now only fairly four years old, even in Massachusetts, the oldest State that is conducting it, to say, I think it better for California to hit the pause button and await additional information from the jurisdictions where this experiment is still maturing.”
This is risibly weak. Wait for additional information? Cooper suggested that it was a lack of knowledge concerning the outcome of homosexual marriage that led to skepticism as to its soundness, rather than the moral knowledge that such an arrangement was against the “Laws of Nature and of Nature’s God,” and therefore could not possibly be advanced as a right. Since chastity is the moral principle of marriage, how could an unchaste act – such as sodomy or any other homosexual act – be made the basis of marriage? Something cannot be its opposite.
Cooper studiously avoided saying anything like this because, it would seem, there is no basis within his own beliefs to do so. As mentioned earlier, he was like a Treasury Secretary saying, “The counterfeiting of our currency has only just begun, so there is no way of knowing if it will have any deleterious effects on the dollar. Let’s see how counterfeiting works out in the states where it currently exists before we adopt it elsewhere.” This is the strength of the “pause button” argument. It was sure to lose.
In acceding to homosexual marriage, Cooper reduced an objective good to a subjective preference. The ease with which he did it demonstrates the lack of the natural law foundation that he denigrated in Jaffa. Cooper appears to have been at pains to portray the issue of homosexual marriage as one of states’ rights, avoiding, in fact not even raising the question as to whether homosexual acts were inherently good or bad.
This left him in the position of Stephen A. Douglas in the Lincoln/Douglas debates. Douglas said that the slavery issue should be left to the states to decide, as there was nothing inherently right or wrong in slavery. Popular sovereignty should reign. Cooper adopted an analogous position concerning homosexual marriage – it’s a states’ rights issue. However, homosexual proponents have taken on themselves the mantle of civil rights; they claim (inappropriately) to be Lincoln in this debate. This left Cooper in a sure-to-lose position – taking, analogously, the slavery position in an antislavery fight.
It is not objective truth that enslaves, but the unfettered passions. Homosexual marriage is the celebration of freedom without reason – using love as the excuse. It is the antithesis of the “moral and political philosophy” of the founders. However, true love is not blind, but is directed by Nature toward the Good. As Lincoln said to Douglas in their debates about slavery, one “cannot logically say that anybody has a right to do wrong.”
One cannot “evolve” from this principle, but only devolve – which is the word Cooper should have used to describe the change in his position.
Robert R. Reilly is the author of Making Gay Okay: How Rationalizing Homosexual Behavior Is Changing Everything, recently published by Ignatius Press.