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MoralAccountability.com

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Moral Accountability: An Open Letter January 21, 2009

In the course of the 2008 presidential campaign, a small group of Catholic and Evangelical Protestant intellectuals and activists, while saying that they personally support legal protection for the unborn and oppose the redefinition of marriage, promoted the candidacy of Barack Obama, who made no secret of his intention to wipe out the entire range of laws restricting or discouraging abortion and embryo-destructive research, or of his opposition to all state and federal initiatives (such as California Proposition 8 and the federal Defense of Marriage Act) to preserve marriage as the union of a man and a woman. These men and women assured their fellow Christians and other social conservatives that Obama’s economic policies would reduce the incidence of abortion, and they promised that Obama was being honest when he said that he was opposed to “same-sex marriage.”

Despite these assurances, we fear that the Obama administration will swiftly begin an assault on pro-life laws and pro-marriage policies. During his campaign for the presidency, Obama promised that his very first presidential act would be to push through the so-called Freedom of Choice Act, which would require federal and state funding for abortion and, in the gleeful words of the National Organization for Women, “wipe out hundreds of anti-abortion laws” across the United States. Even if he and his allies in Congress are unable to win sufficient support for this extreme measure to enact it as a package, they will no doubt seek to push through its various elements one by one. Bills will be introduced, for example, to override laws requiring parental consent or at least notification for abortions performed on minor girls—laws that demonstrably save thousands of lives every year—and laws mandating the provision of factual information about fetal development and the risks of abortion to women contemplating the procedure.

Barack Obama has also promised to repeal the Defense of Marriage Act which protects states from being forced to recognize out-of-state marriages that are contrary to their public policy of treating marriage as the conjugal union of husband and wife. Despite his statement to voters that he favors preserving the definition of marriage as a male-female union, Obama actively opposed California’s Proposition 8, a measure—passed despite his opposition by the people of California—that preserves the traditional definition of marriage.

The Moral Accountability Project trusts that those self-identified pro-life and pro-marriage Catholics and Evangelicals who helped to put Barack Obama into a position to accomplish his goals were sincere in their admiration for him. We are willing to believe that they genuinely hope that he will go back on his pledges to attack pro-life laws and repeal pro-marriage policies. Still, actions have consequences, and the actions of these intellectuals and activists will have consequences that are all too easy to predict. With each assault of the Obama administration on laws and policies upholding the sanctity of human life and the dignity of marriage, we will ask all Catholics and Evangelicals, including those who supported Obama, to join us in resisting these assaults. That is what we will do at www.moralaccountability.com.

Our project is offered in a constructive spirit, not one of vilification. Our goal is to help ensure that never again will good intentions conspire with shoddy reasoning and wishful thinking to compromise the rights of the weakest and most vulnerable members of our community and to undermine the institution of marriage. And so in a sincere spirit of friendship, we invite those Catholics and Evangelicals who joined with Planned Parenthood, the National Abortion Rights Action League, and similar organizations in supporting Obama to join us now in repelling the attacks that will be launched against life and marriage in this administration.

With the revocation of the Mexico City Policy forbidding the use of U.S. taxpayer funds to promote abortion abroad, with the repeal of the Hyde Amendment protecting U.S. taxpayers from being forced to pay for abortions, with the demolition of laws requiring parental involvement and informed consent, with the promotion of “therapeutic” cloning and the expansion of embryo-destructive research, with the abolition of conscience and religious liberty protections for pro-life physicians, nurses, and pharmacists, and with the fulfillment of Obama’s other promises to the abortion and embryo-research industries, the death toll is sure to mount. In solidarity with the victims, we will document it as best we can, and we will demand moral accountability.

Faithfully,

Robert P. George, Princeton University
Hadley Arkes, Amherst College
Francis Beckwith, Baylor University
Gerard V. Bradley, University of Notre Dame Law School
Robert Lowry Clinton, Southern Illinois University
Anthony Esolen, Providence College
Matthew Franck, Radford University
John Breen, Loyola University of Chicago
Patrick Lee, Franciscan University of Steubenville
Michael New, University of Alabama
Michael Paulsen, University of St. Thomas
Ronald Rychlak, University of Mississippi
Colleen Sheehan, Villanova University
Gregory Sisk, University of St. Thomas School of Law
James Stoner, Louisiana State University
Micah Watson, Union University
Christopher Tollefsen, University of South Carolina


(Cross-posted on Southern Appeal)

Comments (45)

First gut response; More internet activism. Wonderful. Let's win cyber-space!

After reading that, I cant help but remember this:

2Pe 2:1 But false prophets also arose among the people, just as there will also be false teachers among you, who will secretly introduce destructive heresies, even denying the Master who bought them, bringing swift destruction upon themselves.
2Pe 2:2 Many will follow their sensuality, and because of them the way of the truth will be maligned;
2Pe 2:3 and in {their} greed they will exploit you with false words; their judgment from long ago is not idle, and their destruction is not asleep.
2Pe 2:4 For if God did not spare angels when they sinned, but cast them into hell and committed them to pits of darkness, reserved for judgment;
2Pe 2:5 and did not spare the ancient world, but preserved Noah, a preacher of righteousness, with seven others, when He brought a flood upon the world of the ungodly;
2Pe 2:6 and {if} He condemned the cities of Sodom and Gomorrah to destruction by reducing {them} to ashes, having made them an example to those who would live ungodly {lives} thereafter;
2Pe 2:7 and {if} He rescued righteous Lot, oppressed by the sensual conduct of unprincipled men
2Pe 2:8 (for by what he saw and heard {that} righteous man, while living among them, felt {his} righteous soul tormented day after day by {their} lawless deeds),
2Pe 2:9 {then} the Lord knows how to rescue the godly from temptation, and to keep the unrighteous under punishment for the day of judgment,
2Pe 2:10 and especially those who indulge the flesh in {its} corrupt desires and despise authority. Daring, self-willed, they do not tremble when they revile angelic majesties,
2Pe 2:11 whereas angels who are greater in might and power do not bring a reviling judgment against them before the Lord.
2Pe 2:12 But these, like unreasoning animals, born as creatures of instinct to be captured and killed, reviling where they have no knowledge, will in the destruction of those creatures also be destroyed,
2Pe 2:13 suffering wrong as the wages of doing wrong. They count it a pleasure to revel in the daytime. They are stains and blemishes, reveling in their deceptions, as they carouse with you,
2Pe 2:14 having eyes full of adultery that never cease from sin, enticing unstable souls, having a heart trained in greed, accursed children;
2Pe 2:15 forsaking the right way, they have gone astray, having followed the way of Balaam, the {son} of Beor, who loved the wages of unrighteousness;
2Pe 2:16 but he received a rebuke for his own transgression, {for} a mute donkey, speaking with a voice of a man, restrained the madness of the prophet.
2Pe 2:17 These are springs without water and mists driven by a storm, for whom the black darkness has been reserved.
2Pe 2:18 For speaking out arrogant {words} of vanity they entice by fleshly desires, by sensuality, those who barely escape from the ones who live in error,
2Pe 2:19 promising them freedom while they themselves are slaves of corruption; for by what a man is overcome, by this he is enslaved.

My soul is tormented as I know other souls are also in our day here and now.

Our goal is to help ensure that never again will good intentions conspire with shoddy reasoning and wishful thinking to compromise the rights of the weakest and most vulnerable members of our community...

I agree! Gays and lesbians are often the "weakest and most vulnerable members of our community," and we should be vigilant to make sure their rights aren't compromised by an unthinking majority simply because they're different from us.

...and to undermine the institution of marriage.

No. You don't get to have it both ways. Either political vulnerability is, or is not, relevant. Either majority rule is, or is not, self-validating. You can't crow about beating back the gays with 52% of the populace and at the same time lobby to overturn majority-supported abortion-rights laws.

Either you honestly care about political minorities or you don't. Pick one -- but for God's sake don't hide behind Frank Luntz-generated meaningless catchphrases.

Yeah, gee, refusing to call two people "married" who want to be called "married" is _just_ like tearing them limb from limb and calling it "freedom." Just like that.

You beat me to that one, Lydia. I mean, do leftists actually want homosexuals to be treated qua homosexuals the way they (leftists) treat the unborn and the feeble qua the unborn and the feeble?

That'd be some kind of "equality", I suppose. Good grief.

Andrew:

The letter only seems meaningless to you because you impute your understanding of its terms on it. Yes, we indeed believe that no innocent person--whether they are the unborn or have homosexual inclinations or root for the Texas Longhorns--should be a victim of unjustified homicide.

The question of what marriage is, as someone with your level of acumen should know, is not the same as the question of whether citizens should be treated equal before the law. It seems to me that once one detaches marriage from what we can objectively know about the human organism--that it is two-gendered and intrinsically ordered to organic wholeness for the sake of procreation and/or the multifaceted unity of the marital act--then marriage ceases to exist as an objective reality. It cannot, for example, exclusively be based on love and affection, since both of those ebb and flow over time, and in order for marriage to work it must be permanent. Presently, it is more difficult to quit the teacher's union or pay your employees less than minimum wage than it is to end one's marriage. So, that one is culturally gone. But why just two people? After all, the bisexual with polyamorous tendencies can only express his or her love in a larger ensemble of three or more. And what of the hermit? Why should his or her monastic existence not to be honored by the word "marriage." The fact that, if he is a man, he may spill his seed into a kleenex or a goat should not suggest that we judge such arrangements as wrong or inappropriate.

Yes, we know that people of a wide variety feel a deep and intimate connection to those of their own gender. Of this, I have no doubt. But that cannot ground marriage, for it is too subjective, illusive, without any grounding in the objective unity expressed in the traditional understanding of marriage. For it does not tell us what marriage is. It does not connect marriage to anything that we have come to know about the human species, its inexorable complimentarity of gender and the sort of amazing and resilient institution that has resulted. It simply announces to us a level of intimacy, which its participants may, if they want to, honor it among themselves and their friends. But to require by judicial fiat (as the Calif. Supreme Court attempted to do) that the rest of us call it "marriage," when so many of us, like the little boy who called the "Emperor" naked, cannot see it, is to show a deep disrespect to one's fellow citizens, who would be pleased to just leave gay couples alone and to respect their privacy. Why the insistence on forcing Catholic Charities, public schools, a photographer in New Mexico, landlords, Christian employers to acquiesce to such a controversial understanding of human beings and their nature that they cannot find in any of the wisdom of their predecessors? If something as well understood as marriage is up for grabs, you can't play the bigot card on this one? For I can just announce that bigotry is up for grabs, historically bound, a subject of deep disagreement among well-meaning citizens, ad nauseum? Liberal skepticism is a two-edged sword, don't forget.

Of course, the one-time prohibition of interracial marriage will be brought up. But it, ironically, establishes my point. The couple in Loving v. Virginia was forbidden from marrying, precisely because one was a man and one was a woman. Virginia understood that their marriage would have produced biracial children, which Virginia did not want. So, strangely enough, Virginia forbade them from marrying precisely because they could be married. That is, the wrongness of forbidding interracial marriage was based on the objective truth of the nature of men and women, which the gay marriage proponents want us to abandon. So, ironically, gay marriage would undermine the basis for judging the Virginia statue wrong, for it would establish the position that marriage is whatever the state says it is. But if that is the case, why was Virginia wrong? Unless you already know what marriage is, you can't say why Virginia was wrong.

Consider this example: If an interracial gay couple had asked to be married in Virginia (in the 1960s), they would have been turned away because of their sameness, not because of their difference.

This is why abandoning the ground of marriage--male/female complimentarity as the basis of civil society--is the end of marriage.

As a simple historical fact, marriage is a bit less static than the picture Mr. Beckwith paints. In some times and places, marriage admits of polygny, in others (far less frequently) it admits of polyandry; sometimes marriage is not really binding even to the end of life, sometimes it is, sometimes it is considered an eternal bond (as in the Orthodox Church).To say that these cannot be called marriage simply forces one's own interpretation upon historical events in a way which reduces any attempted argument to sheer assertion. However, while marriage, as a historical matter, might not exactly fit into any stable formula, it's not simply an amorphous term either.

The definition one encounters in the field of anthropology (although it isn't technically a definition) runs something like this: marriage is the household institution in which society deems it proper to produce and raise children (and this can be construed more or less widely). Marriage does not simply occur when people commit to each other or have sex with one another, both of those things happen often --as a simple historical fact-- outside of marriage, sometimes with societal approval. The relation marriage has to procreation seems to be lost on those who advocate gay marriage.

Marriage as a civil institution may, of course, be distinguished from marriage as a sacrament, the purpose of which is not primarily the procreation of children but rather the salvation of the members; however, the sacramental form is not entirely distinct from the civil form, and very unlike what the homosexual lobby is clamoring for anyway.

Gays and lesbians are often the "weakest and most vulnerable members of our community..."

This statement is incorrect. The unborn are literally the weakest and most vulnerable members of our community.

No. You don't get to have it both ways.

I suppose that you can have it both ways. When the majority defend marriage, they are the "unthinking majority", but when they support abortion (as you claim), they are the thoughtful majority.

Thomas, you are most certainly correct, and I say as much in a piece I published 4 years ago in the journal Philosophia Christi, "Marriage, Sex, and Jurisprudence of Neutrality": http://homepage.mac.com/francis.beckwith/response.pdf

Here's an excerpt:

Because my time for rebuttal is only five minutes, and because many of the points in Professor Long’s argument have been critiqued in J. Budziszewski’s initial presentation, I will offer brief comments to only two of Professor Long’s points.

(1) He argues that because marriage seems to have had a changing character
historically; therefore, same-sex marriage would be nothing more than
another innovation propelled by present realities and understandings that our
predecessors had not grasped. There are several problems with this argument.

(a) Incorporating same-sex marriage does not follow from the apparent
changing character of marriage
. One could grant Professor Long his
premises but still reject his conclusion. After all, if difference of opinion
over a subject means that no one has ever been correct about it, one could
announce that one disagrees with this principle and thus reject it on its own
grounds.

(b) The changing character of marriage proves our point. In none of the
cases cited by Professor Long is the fundamental ground of marriage rejected.
That is, whether the marriage is polygamous, monogamous, open to concubines,
intended only for procreation, etc., the basic teleology of the union
remains the same, one-flesh communion between a man and a woman. A
man may have more than one wife and still be married, but he may not have
less than one wife and still be married.

I just want to say that Frank's comment from 10:42pm last night is one of the best short statements on gay marriage I've ever seen.

And I just want to echo Paul's comment.

I'm still not totally convinced that gay marriage will be uniquely and especially damaging to the institution of marriage, but I think if anyone could convince me it would be Professor Beckwith.

Yeah, Frank's got his mojo working today. It's rare that I read a post that long and feel disappointed when it comes to an end.

Frank, thank you for your rebuttal of Thomas' argument, which I have encountered again and again from sociologists and anthropologists, who believe that they are actually telling us something we haven't already known for eons, which is that historically, a cultural tendency to monogamous marriage has not been the norm. It's a shallow and irrelevant point, and all it proves is that people in those fields need to get out more--the rest of humanity doesn't need them to tell us such elementary anthropological facts, and their argument is question-begging because it deliberately elides the distinction between the form (polyandry, polygamy etc.) and the essence (male-female) of marriage.

In fact, the argument can be turned around so easily, because for all the rich diversity in this ever-shifting mosaic in the forms of marriage across time and space, one such iteration is notable for its absolute absence--same-sex "marriage," which never has been seen as a sensible concept anywhere, at any time, by anybody. Why so much diversity of form, and yet such absolute uniformity of essence?

I don't know if my point rates being a point c, but it seems like the example of the ancient Greeks (more tolerant of homosexual acts than any) not affirming same-sex marriage goes a long way toward closing down the cultural relativist escape hatch.

Another follow-on point is that gay marriage advocates become so righteously indignant, and predictably accuse conservatives of "fear-mongering," when we suggest that the rationale for homosexual marriages leads necessarily to the acceptance of polygamy. And yet they essentially acknowledge the connection when they cite the existence of polygamy as a plank of tautological/conceptual support for gay marriage.

If Francis Beckwith's "defense" is truly the gold standard, then I suspect gay marriage will be universal within a decade. But before we take a look, I think it's important to define the terms of the discussion, because some of the things Francis says are (to me, anyway) completely unintelligible in the real context of the gay marriage debate in contemporary America.

Here's the argument. Gay rights advocates believe that the state should recognize homosexual marriages to the same extent -- that is, as involving the same legal rights, benefits, and privileges -- as it currently recognizes heterosexual ones. That's it. Gay rights advocates do not want to force your churches to marry gay people, or to otherwise change your traditions. They just want the same access to government-sponsored benefits as people like me currently enjoy.

With that in mind, let's take a look at Francis's argument:

The question of what marriage is, as someone with your level of acumen should know, is not the same as the question of whether citizens should be treated equal before the law.

True. The relevant question -- as anyone who has ever read any of the gay marriage decisions would know -- is: who is legally permitted to marry a woman (or man)? Right now, I can marry a woman but another woman can't. On face, then, the law plainly discriminates between men and women. That's all you need to make out a prima facie equal protection violation case.

Now, that doesn't prove the case, of course. After demonstrating disparate treatment (and, I should mention for completeness, membership in a protected class -- here, being a woman), the burden then shifts to the state to justify that treatment. So the question then becomes: is that justification sufficient? I don't think it is, and let's see if Francis changes my mind on that:

It seems to me that once one detaches marriage from what we can objectively know about the human organism--that it is two-gendered and intrinsically ordered to organic wholeness for the sake of procreation and/or the multifaceted unity of the marital act--then marriage ceases to exist as an objective reality.

This statement is either false or meaningless. Obviously, heterosexual marriages aren't subject to state approval based on "the sake of procreation" -- otherwise, we'd have laws forbidding women over 40 from marrying or remarrying. (And yes, those laws would clearly violate the equal protection clause.)

Francis does leave himself wiggle room with the mellifluous phrase "the multifaceted unity of the marital act." I have no idea what that means, and neither does any court in this country. Whatever it is, either gay people can do it, or it's not a basis for approving or denying heterosexual marriages.

It cannot, for example, exclusively be based on love and affection, since both of those ebb and flow over time, and in order for marriage to work it must be permanent.

This sentence is gibberish. Procreation is even more subject to 'ebb and flow' than affection because procreation definitely ends in women, whereas feelings may end or may not. So, um, that's wrong. And (as you point out in the very next sentence!), nobody thinks that all heterosexual marriages are "permanent," and yet you seem to believe that's an institution worth "protecting."

Presently, it is more difficult to quit the teacher's union or pay your employees less than minimum wage than it is to end one's marriage. So, that one is culturally gone.

You do realize this undercuts your argument, right? If heterosexual marriages are "culturally gone" already, then there's no harm to extending marriages to homosexuals. Oops.

But why just two people? After all, the bisexual with polyamorous tendencies can only express his or her love in a larger ensemble of three or more. And what of the hermit? Why should his or her monastic existence not to be honored by the word "marriage." The fact that, if he is a man, he may spill his seed into a kleenex or a goat should not suggest that we judge such arrangements as wrong or inappropriate.

This makes no sense. The question is: "who is permitted to marry a woman?" The answer right now in most states is "only an unmarried man." My argument is that excluding women is not justified under the equal protection clause. The hermit has the legal right to marry a woman -- if not the opportunity -- so that answers that. A goat is not a person for purposes of the equal protection clause; so that answers that. So the only remaining 'argument' is polygamy, and again, that's a non-argument as far as the law is concerned, because the question of whether some or all individuals have the right to get married more than once is logically distinct from the question of whether all individuals have the right to marry a woman.

Even outside the equal protection context, the polygamy argument is stupid: it's basically the old 'slippery slope' fallacy, ignoring the fact that the particular slope is patently distinguishable.

Moving on:

Yes, we know that people of a wide variety feel a deep and intimate connection to those of their own gender. Of this, I have no doubt. But that cannot ground marriage, for it is too subjective, illusive, without any grounding in the objective unity expressed in the traditional understanding of marriage.

Again, this is lovely rhetoric, but it means nothing. "Marriage" in this country -- and marriage as defined by the gay rights movement does not mean "the traditional understanding of marriage" (whose traditions?) -- it means a unique combination of rights and privileges enshrined in the law. That's the opposite of "illusive."

For it does not tell us what marriage is. It does not connect marriage to anything that we have come to know about the human species, its inexorable complimentarity of gender and the sort of amazing and resilient institution that has resulted. It simply announces to us a level of intimacy, which its participants may, if they want to, honor it among themselves and their friends.

No. Again: I don't think you understand what gay rights activists want. You can go to your church and get whatever ceremony you want. No priests will be forced to perform private marriage ceremonies between couples of whom they do not approve (including gays). You can go right ahead and privately discriminate against them as much as you want.

What gay marriage advocates request is that the state cannot engage in the same discriminatory practices that your church does. That's it.

But to require by judicial fiat (as the Calif. Supreme Court attempted to do) that the rest of us call it "marriage," when so many of us, like the little boy who called the "Emperor" naked, cannot see it, is to show a deep disrespect to one's fellow citizens, who would be pleased to just leave gay couples alone and to respect their privacy.

You can call it whatever the hell you want. But let's be honest, here: you are emphatically not willing to "just leave gay couples alone." You may be willing to leave them alone so long as they have fewer rights than you do -- which, of course, is a defense dating back to slavery.

Why the insistence on forcing Catholic Charities, public schools, a photographer in New Mexico, landlords, Christian employers to acquiesce to such a controversial understanding of human beings and their nature that they cannot find in any of the wisdom of their predecessors?

Again, nonsense. You can "understand human beings" however you want. You just can't deny them their rights on the basis of your (ridiculous) understanding.

If something as well understood as marriage is up for grabs, you can't play the bigot card on this one? For I can just announce that bigotry is up for grabs, historically bound, a subject of deep disagreement among well-meaning citizens, ad nauseum? Liberal skepticism is a two-edged sword, don't forget.

Uh, what?

Look: objectively, your position gives fewer rights and fewer benefits to homosexual couples than it does to heterosexual ones, so only one side of the sword is "edged," to borrow your (misplaced) metaphor.

Of course, the one-time prohibition of interracial marriage will be brought up. But it, ironically, establishes my point. The couple in Loving v. Virginia was forbidden from marrying, precisely because one was a man and one was a woman. Virginia understood that their marriage would have produced biracial children, which Virginia did not want. So, strangely enough, Virginia forbade them from marrying precisely because they could be married. That is, the wrongness of forbidding interracial marriage was based on the objective truth of the nature of men and women, which the gay marriage proponents want us to abandon. So, ironically, gay marriage would undermine the basis for judging the Virginia statue wrong, for it would establish the position that marriage is whatever the state says it is. But if that is the case, why was Virginia wrong? Unless you already know what marriage is, you can't say why Virginia was wrong.

This is an appalling misstatement of law, either due to gross incompetence or to outright dishonesty. Here, let me actually quote from the Loving v. Virginia decision, 388 U.S. 1 (1967), which anyone can read here:

There can be no question but that Virginia's miscegenation statutes rest solely upon distinctions drawn according to race. The statutes proscribe generally accepted conduct if engaged in by members of different races. Over the years, this Court has consistently repudiated "[d]istinctions between citizens solely because of their ancestry" as being "odious to a free people whose institutions are founded upon the doctrine of equality." Hirabayashi v. United States, 320 U.S. 81, 100 (1943). At the very least, the Equal Protection Clause demands that racial classifications, especially suspect in criminal statutes, be subjected to the "most rigid scrutiny," Korematsu v. United States, 323 U.S. 214, 216 (1944), and, if they are ever to be upheld, they must be shown to be necessary to the accomplishment of some permissible state objective, independent of the racial discrimination which it was the object of the Fourteenth Amendment to eliminate. Indeed, two members of this Court have already stated that they "cannot conceive of a valid legislative purpose . . . which makes the color of a person's skin the test of whether his conduct is a criminal offense." McLaughlin v. Florida, supra, at 198 (STEWART, J., joined by DOUGLAS, J., concurring).

There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification. The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy. We have consistently denied the constitutionality of measures which restrict the rights of citizens on account of race. There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.

Absolutely nothing in the Loving decision rests on "biracial children," and Francis either knows or should have known that to be the case. Rather, the equal protection violation found by the Loving court rests on the fact that certain marriages were restricted to certain citizens "solely because of their ancestry" -- just as the present bans restrict certain citizens from marrying "solely because of their gender.

In sum: Francis's arguments are irrelevant, frequently wrong, and (in at least one place) indefensibly dishonest.

If Frank wants to stop this as a threadjack, I will happily drop it. So just say the word, Frank. But for the moment, Andrew, you say,

You can "understand human beings" however you want. You just can't deny them their rights on the basis of your (ridiculous) understanding.

That's after Frank mentioned landlords and photographers, among others. Is it then your opinion that it is the _right_ of a lesbian couple to have a photographer take pictures of them kissing each other and celebrating their lesbian union at their commitment ceremony? Because refusing to do that is what got the photographer sued, and you seem very quick to talk about denying people their rights. That's a pretty darned expansive notion of "rights" you've got there, if so. And ditto for the landlords. Is it your opinion that it is the _right_ of a couple to have an apartment rented to them to live out their sexual relationship in? Because I'll tell ya--I don't even think that's the _right_ of a heterosexual couple.

Lydia: no, of course not. As I set out in the beginning of my rebuttal, I am concerned with the package of rights defined by the state as accruing to heterosexual married couples. You and I both agree that heterosexual couples don't have the "right" to force a private photographer to take their picture, so that's not an issue.

It's an issue in real life, and in law. It's happened, as have many other similar things, such as private colleges' being forced to open their married students' housing to homosexual couples, private charities being forced to place children for adoption with homosexuals or get out of the business in that locality, and so on and so forth. If you think that homosexual non-discrimination and homosexual rights are limited in scope, you are simply wrong in practice and in fact.

Lydia: we agree that private citizens have a right to discriminate! So I'm not really sure what your argument is. But I'll tell you what -- you join me in lobbying to get homosexuals equal rights from the federal and state governments under law, and then I'll join you afterward in a grand libertarian crusade to make sure neither homosexuals nor heterosexuals try and expand government and claim more "rights" against private citizens than appropriate. I'm serious about this. Deal?

None of this responds to Beckwith's lame arguments and outright falsehoods, btw.

"Absolutely nothing in the Loving decision rests on "biracial children," "

It doesn't mention grammar either, but it's there.

Now to the lesson: "Miscegenation" literally means "race mixing," which can only occur between a man and woman who have child bearing powers. The biker and policeman in the Village People cannot "race mix." Andrew, did you happen to check on the Virginia statute that the Court overturned? It's called "the Racial Integrity Act." It was repudiated in 2001 by the Virginia legislature, with these words:

HOUSE JOINT RESOLUTION NO. 607 Expressing the General Assembly's regret for Virginia's experience with eugenics. Agreed to by the House of Delegates, February 2, 2001 Agreed to by the Senate, February 14, 2001 WHEREAS, the now-discredited pseudo-science of eugenics was based on theories first propounded in England by Francis Galton, the cousin and disciple of famed biologist Charles Darwin; and

WHEREAS, the goal of the "science" of eugenics was to improve the human race by eliminating what the movement's supporters considered hereditary disorders or flaws through selective breeding and social engineering; and

WHEREAS, the eugenics movement proved popular in the United States, with Indiana enacting the nation's first eugenics-based sterilization law in 1907, closely followed by Connecticut; and

WHEREAS, in 1924 Virginia passed two eugenics-related laws, the first, the Racial Integrity Act, defined a white person as having no trace of black blood and made it illegal for whites and non-Caucasians to marry; and

WHEREAS, the second 1924 measure permitted involuntary sterilization, the most egregious outcome of the lamentable eugenics movement in the Commonwealth; and

WHEREAS, under this act, those labeled "feebleminded," including the "insane, idiotic, imbecile, feebleminded or epileptic" could be involuntarily sterilized, so that they would not produce similarly disabled offspring; and

WHEREAS, in practice, the eugenics laws were used to target virtually any human shortcoming or malady, including alcoholism, syphilis and criminal behavior; and

WHEREAS, still another regrettable aspect of the eugenics laws was their use as a respectable, "scientific" veneer to cover activities of those who held blatantly racist views; and

WHEREAS, in a landmark 1927 decision, the United States Supreme Court upheld Virginia's involuntary sterilization of Carrie Buck, in an 8-1 ruling written by Justice Oliver Wendell Holmes; and

WHEREAS, from then until 1979, Virginia involuntarily sterilized some 8,000 people, with estimates of the precise number ranging from 7,450 to 8,300; now, therefore, be it

RESOLVED by the House of Delegates, the Senate concurring, That the General Assembly expresses its profound regret over the Commonwealth's role in the eugenics movement in this country and the incalculable human damage done in the name of eugenics; and, be it

RESOLVED FURTHER, That the General Assembly urge the citizens of the Commonwealth to become familiar with the history of the eugenics movement, in the belief that a more educated, enlightened and tolerant population will reject absolutely any such abhorrent pseudo-scientific movement in the future.

You should have read a little more of Loving v. Virginia before you accused me of being dishonest. (BTW, as an aside, what is it about the internet that every disagreement between rivals must eventually descend to "liar," "dishonest," or the always useful, "just like Hitler." Just sayin'). As for your reading of Loving, why didn't you reproduce this?:

In upholding the constitutionality of these provisions in the decision below, the Supreme Court of Appeals of Virginia referred to its 1955 decision in Naim v. Naim as stating the reasons supporting the validity of these laws. In Naim, the state court concluded that the State's legitimate purposes were "to preserve the racial integrity of its citizens," and to prevent "the corruption of blood," "a mongrel breed of citizens," and "the obliteration of racial pride," obviously an endorsement of the doctrine of White Supremacy. The court also reasoned that marriage has traditionally been subject to state regulation without federal intervention, and, consequently, the regulation of marriage should be left to exclusive state control by the Tenth Amendment.

Just sayin'.

Look, I may not be the sharpest knife in the philosophical draw, and, like you, my eye sometimes skips when I find "the money quote." But, remember, when it comes to legal opinions, it's not always what immediately meets the eye. Behind every law there is a history, a jurisprudential etymology if you will. And in this case, would you have ever predicated that philosophical materialism was behind this racist policy? Of course not. Because it doesn't fit your narrative. That's why scholarship is difficult, and more so when your principles are grounded in the flux of history rather than in the eternal truths that we find incarnate when we reflect deeply and carefully about the order and nature of things. That's why wicked Popes and clumsy Christians don't dent my faith. For the Kingdom of my Lord is not of this world. To be sure, we see through a glass darkly, to quote St. Paul. But we do see.

"You can go right ahead and privately discriminate against them as much as you want."

And they can privately copulate all they want. But in order for their copulating to be called marriage it requires that all the public institutions that I and my family inhabit will instruct everyone that we are bigots and that our beliefs are irrational, and that all public accommodations, even private ones (like universities, church buildings not used for worship, homes in which rooms are rented) are fair game. Do you seriously think that someone with my views could be hired by a university or college in Northern California no matter what my credentials or accomplishments? After all, people like me are frequently called names, such as homophobe, a pejorative created of whole cloth for the purpose of marginalizing dissent. And given the legal protections in place, why risk hiring me?

Andrew, unless believing in the exclusivity of male-female marriage is irrational, then there is no justification for the marginalization of devout Christians, Jews, and Muslims who will not acquiesce to the coercion you mistakenly claim is benign. But your incendiary language gives you way. We are free to "discriminate," which means "be irrational," in the privacy of our own homes. How nice of you. So, what once was relegated to sodomy--a love that dare not speak its name--is now placed on marriage, family, and faith.

"Right now, I can marry a woman but another woman can't. On face, then, the law plainly discriminates between men and women. That's all you need to make out a prima facie equal protection violation case."

Right now, every man can marry a woman; every woman can marry a man; no man can marry a man; no woman can marry a woman; no one can marry anyone who is already married.

Seems equal to me.


A goat is not a person for purposes of the equal protection clause

But the person wishing to enter into a relationship with it, and call it marriage, is a person for such purposes.

Thank you, Sage. I carry no brief for the goat. :-)

Andrew T. may be an unusual exception, in that he actually takes a libertarian view of free association, private discrimination, etc., and a general and principled aversion of governmental coercion, but the whole force of the same-sex marriage agitation is toward coercion and forced acceptance. Lydia has cited some examples -- forcing wedding photographers to accept business they have a principled opposition to, etc. -- and many more could be named. Perhaps the starkest example, in Massachusetts a church was forced to open its grounds to a same-sex couple: http://www.npr.org/templates/story/story.php?storyId=91486340

Andrew may recall the sweeping and unqualified language of the Mass. Supreme Judicial Court, which in its gay marriage ruling brushed aside all opposition as invidious and irrational.

There is no libertarian compromise available, because it is not of the essence of liberalism, whatever its stated appreciation of "tolerance," to tolerate non-liberal things.

Andrew T.,

Since Professor Beckwith doesn't seem to mind discussing the issue of gay marriage, I have a question for you. What do you think of Constitutional Amendments to define marriage as between one man and one woman? It seems to me that in any form of representative government, the people are allowed and expected to create laws that make distinctions between people all the time. One example that comes to mind is a progressive income tax. There would seem to be no warrant in the original Constitution and Bill of Rights to treat someone who makes over $X differently than someone who makes less than $X. So we the people passed the 16th Amendment and now someone who makes >$X can be taxed more than someone who makes

Likewise, it seems to me if the people want to define marriage traditionally through Constitutional amendments, then what's the problem from your perspective? The government is simply treating two classes of people (heterosexuals and homosexuals) differently by defining what we the people think marriage should be about.

Paul:

There is no libertarian compromise available, because it is not of the essence of liberalism, whatever its stated appreciation of "tolerance," to tolerate non-liberal things.

Exactly.

Furthermore, anyone who thinks that a libertarian solution is possible should carefully study Jim Kalb's book The Tyranny of Liberalism with an open mind. It isn't just that there aren't enough people willing to try the libertarian-tolerant solution; it is that there is no libertarian-tolerant solution, not even conceptually, in principle. So pursuing one is not merely to pursue the impossible: it is to pursue nonsense, to pursue something so incoherent that it isn't even wrong.

I am honestly stunned by Francis Beckwith's flagrantly dishonest conduct here. In responding to my argument that he deliberately misstated the holding of Loving v. Virginia, Beckwith lies again!, this time, about the underlying statute at issue in that case, Va. Code 20-58. I can't fathom a reason for this sort of dishonesty, and I'll document it at length in this post.

However, before I get there, I think it's also worth pointing out that virtually all of my arguments have gone unresponded. I reiterate them here:

1. Heterosexual marriages are not protected by law on the basis of procreation; otherwise, women over 40 would not be allowed to marry. Laws attempting to do that would clearly violate the equal protection clause.

Francis does not respond to this point.

2. The phrase "the multifaceted unity of the marital act" is meaningless and is no basis for legal determinations.

Francis does not respond to this point.

3. The fact that feelings "ebb and flow" is no basis for invalidating a contract on said basis, and in any event, procreative activities "ebb and flow" more than feelings, since procreation definitely stops whereas feelings of love may or may not.

Francis does not respond to this point.

4. The fact that heterosexual marriages are, in Francis's own words, presently "culturally gone" means that the supposed harm in expanding marriage in today's society to homosexuals has already occurred.

Francis does not respond to this point.

5. Polygamy (multiple individuals marrying more than once) is logically, factually, and legally distinguishable from the question of who may get married in the first place. In any event, this is nothing more than the slippery slope fallacy.

Francis does not respond to this point.

6. The claim that anti-gay-rights activists are "willing to leave gay couples alone" is fallacious; you're willing to leave them alone only so long as they have fewer rights and privileges under the law, and that justification is indistinguishable from the defense of slavery.

Francis does not respond to this point.

7. Now, let's look at the response Francis makes on the interpretation of Loving v. Virginia. Remember that my claim is simple: that the Loving decision rests on the fact that while white people were allowed to marry white people, black people were not. Thus, a segment of society was arbitrarily excluded from the same privileges as another segment of society -- precisely the equal protection at issue in the gay marriage cases.

Francis argued -- wrongly -- that the Loving decision was predicated on interracial procreation, and thus proves his point that marriage is supposedly "really" about offspring. I showed -- and linked to the original decision -- that this is not the case. Here's how I summarized it:

Absolutely nothing in the Loving decision rests on "biracial children," and Francis either knows or should have known that to be the case. Rather, the equal protection violation found by the Loving court rests on the fact that certain marriages were restricted to certain citizens "solely because of their ancestry" -- just as the present bans restrict certain citizens from marrying "solely because of their gender.

Francis's response is flippant and insulting:

Now to the lesson: "Miscegenation" literally means "race mixing," which can only occur between a man and woman who have child bearing powers. The biker and policeman in the Village People cannot "race mix." Andrew, did you happen to check on the Virginia statute that the Court overturned? It's called "the Racial Integrity Act." It was repudiated in 2001 by the Virginia legislature.

As it turns out, I have checked on the Virginia statute that the court overturned. It's former Virginia Code 20-58, and it states:

"Leaving State to evade law. -- If any white person and colored person shall go out of this State, for the purpose of being married, and with the intention of returning, and be married out of it, and afterward return to and reside in it, cohabiting as man and wife, they shall be punished as provided in Section 20-59, and the marriage shall be governed by the same law as if it had been solemnized in this State. The fact of their cohabitation here as man and wife shall be evidence of their marriage."

Section 20-59, in turn, provided the punishment:

"Punishment for marriage. -- If any white person intermarry with a colored person, or any colored person intermarry with a white person, he shall be guilty of a felony and shall be punished by confinement in the penitentiary for not less than one nor more than five years."

Now, look at those statutes. Click on the the link and read them for yourself.

You will see that the laws at issue have nothing to do with procreation. Nothing. The 2001 act Francis quotes, on its face, deals with Buck v. Bell, a forced sterilization case, and not the Loving decision.

Obviously, sterilization is concerned with procreation. But marriage is not. And Francis's continued efforts to lie on this issue are, frankly, disturbing. I humbly suggest that the reason for his outright prevarications stem from the fact that there are no good arguments for his position.

"You will see that the laws at issue have nothing to do with procreation. Nothing. The 2001 act Francis quotes, on its face, deals with Buck v. Bell, a forced sterilization case, and not the Loving decision."

Andrew, Loving overruled the Racial Integrity Act. It says it in the opinion. The legislative purpose of the Racial Integrity Act, according to the Court was to make sure the races didn't mix. Mixing races requires--and here's the kicker--procreation. This is why forced sterilization was part of the Act. It is of a piece, having its roots in the eugenics movement.

But I not only quote from the 2001 act, but from Loving itself, which presents the Virginia Supreme Court's understanding of the Racial Integrity Act:

In upholding the constitutionality of these provisions in the decision below, the Supreme Court of Appeals of Virginia referred to its 1955 decision in Naim v. Naim as stating the reasons supporting the validity of these laws. In Naim, the state court concluded that the State's legitimate purposes were "to preserve the racial integrity of its citizens," and to prevent "the corruption of blood," "a mongrel breed of citizens," and "the obliteration of racial pride," obviously an endorsement of the doctrine of White Supremacy. The court also reasoned that marriage has traditionally been subject to state regulation without federal intervention, and, consequently, the regulation of marriage should be left to exclusive state control by the Tenth Amendment.

The U. S. Supreme Court maintains that this understanding is a correct reading of the Act and its purpose as applied to the case of the Lovings.

Here's the key: both the bigotry and the overturning of the Act presuppose the nature of marriage. This is why citing it in defense of gay marriage misses the conceptual scaffolding that made the Act and the Loving opinion possible.

Now, can someone defend gay marriage without trying to find an analogy with Loving? Of course. I'm not disputing that. On the other hand, I don't think you have learned to appreciate what precisely you are rejecting when you act as if male-female marriage can be discarded without consequences like yesterday's newspaper.

I'm in O'Hare getting read to fly to Texas. Bye.

Frank posts on a topic.

Andrew T. records a comment which diverts significantly from the topic.

Both Lydia and Zippy record concise comments showing how absurdly meager was substantive means by which Andrew T. diverted the thread. Andrew T. never deigns to answer these comments*.

Enter Frank, who gamely takes up Andrew T.'s comment on this new topic to which he has diverted the thread.

Later, Frank neglects to record a point-by-point rebuttal to a very lengthy comment, now even further diverted from the original thread, recorded by Andrew T.

For this we are treated to a very stern and indignant lecture by Andrew T. to the effect that no one is answering his points, and Frank in particular is a dishonest jackass to boot.

Andrew T., I would request that you make use of your vaunted liberal tolerance and intellectual detachment and consider for a moment just how ridiculous you look fuming over our reluctance to take up your sophistries point by point when (a) the only way to arrived at a position where you could set down these sophistries in the first place was by studiously ignoring several comments criticizing the logical means of your threadjack, and (b), more generally, it is a peculiar threadjacker indeed who fumes against commenters for not staying on topic.

_______
* Specifically, Lydia: "Yeah, gee, refusing to call two people 'married' who want to be called 'married' is just like tearing them limb from limb and calling it 'freedom.' Just like that." Zippy: "I mean, do leftists actually want homosexuals to be treated qua homosexuals the way they (leftists) treat the unborn and the feeble qua the unborn and the feeble?"

And for the very reason Paul gives, Andrew, I'm not going to reply here to your offer of a deal in which I support homosexual "marriage" (no way) and you support the overturn of non-discrimination laws.

Paul: I'm not a leftist, as Lydia, Jeff, and others will tell you. And I guess we'll have to agree to disagree on what constitutes a "threadjack." My view is that the core serious discussion among adults here is whether gay marriage violates the constitution. You are correct in that I've not spent much time on flippant one-liners. I think it's a bit more important to respond to a legal scholar such as Beckwith who is spreading outright lies about Loving v. Virginia. I can understand why others would like to change the subject, however.

Francis:

You continue to misrepresent the facts. Anyone can go and read the text of Loving v. Virginia. Go ahead, do a search for the "Racial Integrity Act" in the text of the decision. Here's what you'll find:

The present statutory scheme dates from the adoption of the Racial Integrity Act of 1924, passed during the period of extreme nativism which followed the end of the First World War. The central features of this Act, and current Virginia law, are the absolute prohibition of a "white person" marrying other than another "white person," a prohibition against issuing marriage licenses until the issuing official is satisfied that [388 U.S. 1, 7] the applicants' statements as to their race are correct, certificates of "racial composition" to be kept by both local and state registrars, and the carrying forward of earlier prohibitions against racial intermarriage.

The "present statutory scheme" referred to in the text of the discussion are Va. Codes 20-58 and 20-59, which I link to and quote above.

Again: nothing in this discussion has anything to do with interracial children. Nothing. Go ahead, and search the text of the opinion.

Then, you raise another red herring, chastising me for not responding to your prior irrelevant quotation:

But I not only quote from the 2001 act, but from Loving itself, which presents the Virginia Supreme Court's understanding of the Racial Integrity Act:

In upholding the constitutionality of these provisions in the decision below, the Supreme Court of Appeals of Virginia referred to its 1955 decision in Naim v. Naim as stating the reasons supporting the validity of these laws. In Naim, the state court concluded that the State's legitimate purposes were "to preserve the racial integrity of its citizens," and to prevent "the corruption of blood," "a mongrel breed of citizens," and "the obliteration of racial pride," obviously an endorsement of the doctrine of White Supremacy. The court also reasoned that marriage has traditionally been subject to state regulation without federal intervention, and, consequently, the regulation of marriage should be left to exclusive state control by the Tenth Amendment.

Again, this is an astonishing bit of misdirection. As the section I've highlighted above shows, this paragraph is where the Supreme Court is summarizing the lower court's opinion, which it then overturns!

I don't think I can state this strongly enough. A layperson might be confused about what this introductory paragraph means. But Francis, who has an M.J.D. degree, clearly knows what the court is doing here. If there are any other lawyers (or even first-year law students) on this blog, I invite them to weigh in here -- every single one of them will confirm my reading of this passage. Francis is simply lying, and I find that reprehensible and sad.

The only reasons I can think of for continuing to blatantly misrepresent the holding of Loving v. Virginia are: (1) that Francis is embarrassed about having been caught in a falsehood, and (2) he further knows that the underlying argument he's making has no legal merit. And no, I have no intention of answering glib one-liners until Francis recants those falsehoods.

Hey Andrew:

Take a chill pill. If it were me you were accusing of being a liar, etc I'd just be summarily deleting your comments. Frank's a nicer guy than I am, but being the hard case around here I kind of wish he wasn't. If you come here to attack the integrity of the contributors, as far as I am concerned you can go f*** yourself. Legally.

I don't have a JD, but I have an MBA, I've studied business law, and perhaps more importantly I've set the record for billable hours at at least one law firm. And I think Frank has a point, a very obvious point (though perhaps as much a philosophical point as a legal one) which I would have to try very hard to deny, in pointing out that both sides of the cited conflict presuppose the nature of marriage.

But even if he didn't have a point, I personally think your comments are completely out of line, and they tend to make me disinterested in anything else you might have to say.

Oy vey! (As Paul might have said on the way to Damascus)

I don't know what to think anymore! I really like the fact that someone like Andrew T. comes to this website to check out what conservatives who obviously don't share his views have to say. So I want to encourage Andrew to keep coming, even though he can be a tad...how should I say...quick to assume the worst in those with whom he disagrees (e.g. our previous discussion of Lee Strobel). I think Zippy gets to the heart of the matter (in his characteristically direct and somewhat harsh Zippy manner) -- Professor Beckwith is talking about the underlying rationale for laws like the ones Andrew T. is citing (i.e. Va. Codes 20-58 and 20-59). Clearly, everyone who cared about racial purity back in the day was probably worried about two things -- the (alleged) corruption that would occur to a white person by loving a black person AND their "mongrel breed" of kids. So it just seems obvious to me, Zippy, and Professor Beckwith that all those old laws that were overturned by Loving had a lot to do with the understanding that marriage was about, in some fundamental sense, procreation.

Furthermore, I'd love to read Andrew T's response to my question regarding citizens defining for themselves what marriage means and how writing that into a constitution would impact his judgement of the legality of treating homosexuals differently than heterosexuals.

Finally, on a totally crazy tangent, I urge everyone here to go check out the url that I included for the first time with my name. I suspect many of you won't be happy with Mr. Frum's project, but you might get a kick out of at least one of his blog writers!

"My view is that the core serious discussion among adults here is whether gay marriage violates the constitution."

That is not the core discussion, unless we interpret "constitution" to mean "the nature of man." The discussion is more philosophical than it is legal. And even the more strictly legal questions that have been raised (aside from the digression into Loving v. Virginia), you have shown a remarkable incapacity to respond to objections. For instance the falsehood of this statement, which has been demonstrated several times (I dug up a whole NPR series on it): "Gay rights advocates do not want to force your churches to marry gay people, or to otherwise change your traditions" -- the falsehood of this claim has not been acknowledged, not even once. Your grand libertarian compromise, upon which your legal case is built, is already impossible. It is impossible because liberalism does not compromise with non-liberal things. That ship sailed long ago.

Moreover, if we're all going to swear off "flippant one-liners," then Frank (and everyone else) is well within their rights to ignore most everything you've said. Your initial response to Frank basically comes down to the complaint that he is making philosophical arguments about the nature of man, while you want to have a narrow rationalist argument on the strictly legal grounds that you get to set out ahead of time. That is the only way you can logically claim that Frank's early statements about marriage as "two-gendered and intrinsically ordered to organic wholeness for the sake of procreation and/or the multifaceted unity of the marital act," are "false or meaningless."

In other words, your position as far as I can tell boils down to a kind of hauuumpf of irritation: you guys want to talk philosophy but I want to talk about narrow legal questions, and if anyone tries to push the matter to the deeper questions of the nature and destiny of man, I'm going to just ignore it.

Zippy: I understand your point. I really do. I don't *want* to accuse anyone of being a liar, and it kind of pains me to do so. I think if you look at my posts here, you'll see that this isn't my typical m.o.

In fact, if you go back to my first response to Francis, you'll see that I'm sort of astonished that he claims that Loving v. Virginia is based on procreation, because, well, it's not. And yes, my rebuttal there is pretty strong. Perhaps I should have given him more of an opportunity to back down from his initial statement.

But to be honest, it's what's happened after that point that I find kind of astonishing. I've linked to Loving and I've linked to the statutes cited by Loving. Francis's legal arguments are simply wrong. In his latest missive, Francis goes so far as to pretend that the Supreme Court's summary of the incorrect lower court's decision is part of the holding. Now, Zippy, if you have the expertise in business law you've claimed, then you've read Supreme Court opinions before. And if you've done that, then you know I'm right and Francis is wrong. I notice that you don't argue with my main point.

Now, if Francis wants to recast his argument the way you have, Zippy, -- "that both sides of the cited conflict presuppose the nature of marriage" -- while recanting his blatant misstatement of Loving, then I'd be happy to respond to it. I concede that's a different argument. But Francis hasn't done that. What he's done is pretend that one of the most important Supreme Court decisions of the last 50 years says something that it doesn't say. To me, that's reprehensible.

Do you disagree?

Paul and others: I think you misunderstand my position. I'm not saying that the only thing that matters are legal arguments. Here's what I'm saying:

1. I made a bunch of philosophical arguments against what Beckwith had to say. Those, for the most part, have gone unrefuted. Just look at my 1/25, 12:39 post above. I think those responses deal with the philosophical arguments on the "nature of marriage" and the like.

2. I also made a legal argument; namely, that Francis's description of a seminal court case is absolutely, completely, drop-dead, first-year-law-student wrong. Since then, Francis has continued to misrepresent the holding of that case. So yes, it makes sense that I am criticizing him on particularly narrow grounds.

To that end, one can agree with me on (2) without agreeing with me on (1), or on gay marriage generally. I would hope that all of us could agree on the general proposition that people shouldn't lie about Supreme Court cases. I dunno; maybe I'm wrong on that.

Jeff: Yes, a constitutional amendment explicitly defining marriage as between one man and one woman would solve any equal protection violations. I wouldn't be in favor of such an amendment (obviously), but if it passed, I would concede that courts would have no basis for reaching the sorts of decisions they've reached in California and Massachusetts.

BTW Jeff: congrats on signing up with Frum's blog; it looks like the kind of project you and I could both get behind! :)

"Va. Codes 20-58 and 20-59" are parts of the Racial Integrity Act.

Statutory construction not only includes the wording of the text, but the rationality behind the statute. According to the Supreme Court, the Racial Integrity Act appears to be consistent with equal protection, since it applies equally to all races. But as the Court points out, its ground is in white supremacy, which is what one finds throughout RIA and the historical backdrop of the act.

From Loving's majority opinion, with footnotes following:

Virginia is now one of 16 States which prohibit and punish marriages on the basis of racial classifications. [FN5] Penalties **1821 for miscegenation arose as an incident to slavery and have been common in Virginia since the colonial period. [FN6] The present statutory scheme dates from the adoption of the Racial Integrity Act of 1924, passed during the period of extreme nativism which followed the end of the First World War. The central features of this Act, and current Virginia law, are the absolute prohibition of a 'white person' marrying other than another 'white person,' [FN7] a prohibition against issuing marriage licenses until the issuing official is satisfied that *7 the applicants' statements as to their race are correct, [FN8] certificates of 'racial composition' to be kept by both local and state registrars, [FN9] and the carrying forward of earlier prohibitions against racial intermarriage. [FN10]

FN5. After the initiation of this litigation, Maryland repealed its prohibitions against interracial marriage, Md.Laws 1967, c. 6, leaving Virginia and 15 other States with statutes outlawing interracial marriage: Alabama, Ala.Const., Art. 4, s 102, Ala.Code, Tit. 14, s 360 (1958); Arkansas, Ark.Stat.Ann. s 55--104 (1947); Delaware, Del.Code Ann., Tit. 13, s 101 (1953); Florida, Fla.Const., Art. 16, s 24, F.S.A., Fla.Stat. s 741.11 (1965) F.S.A.; Georgia, Ga.Code Ann. s 53--106 (1961); Kentucky, Ky.Rev.Stat.Ann. s 402.020 (Supp.1966); Louisiana, La.Rev.Stat. s 14:79 (1950); Mississippi, Miss.Const., Art. 14, s 263, Miss.Code Ann. s 459 (1956); Missouri, Mo.Rev.Stat. s 451.020 (Supp.1966), V.A.M.S.; North Carolina, N.C.Const., Art. XIV, s 8, N.C.Gen.Stat. s 14--181 (1953); Oklahoma, Okla.Stat., Tit. 43, s 12 (Supp.1965); South Carolina, S.C.Const., Art. 3, s 33, S.C.Code Ann. s 20--7 (1962); Tennessee, Tenn.Const., Art. 11, s 14, Tenn.Code Ann. s 36--402 (1955); Vernon's Ann.Texas, Tex.Pen.Code, Art. 492 (1952); West Virginia, W.Va.Code Ann. s 4697 (1961).

Over the past 15 years, 14 States have repealed laws outlawing interracial marriages: Arizona, California, Colorado, Idaho, Indiana, Maryland, Montana, Nebraska, Nevada, North Dakota, Oregon, South Dakota, Utah, and Wyoming.

The first state court to recognize that miscegenation statutes violate the Equal Protection Clause was the Supreme Court of California. Perez v. Sharp, 32 Cal.2d 711, 198 P.2d 17 (1948).

FN6. For a historical discussion of Virginia's miscegenation statutes, see Wadlington, supra, n. 4.

FN7. Va.Code Ann. s 20--54 (1960 Repl.Vol.).

FN8. Va.Code Ann. s 20--53 (1960 Repl.Vol.).

FN9. Va.Code Ann. s 20--50 (1960 Repl.Vol.).

FN10. Va.Code Ann. s 20--54 (1960 Repl.Vol.).

From Harvard's Randall Kennedy, a black man married to a white woman:

This year marks the 30th anniversary of the most aptly titled case in the history of the United States Supreme Court -- Loving v. Virginia. Loving was the name of a couple that was prosecuted for marrying. Mildred Jeter and Richard Loving committed a felony under state law because, after exchanging wedding vows in the District of Columbia, they lived together as husband and wife in Caroline County, Virginia. Doing so violated the state's antimiscegenation law, The Racial Integrity Act, which prohibited any white person ... to marry any save a[nother] white person." Richard was white and his bride Mildred was black. For their transgression, a Virginia judge sentenced Loving to a year in prison, suspended on the condition that they leave the state and not return for twenty-five years. The judge also lectured them on the importance and justifiabilty of the state's policy, asserting that the fact that "Almighty God" had initially placed the races on different continents "shows that he did not intend for the races to mix." One is tempted to laugh at the judge. The sentiments he voiced, however, decisively shaped peoples lives and were by no means idiosyncratic. A Gallup Poll indicated in 1965 that 42 percent of Northern whites supported bans on inter-racial marriage, as did 72 percent of southern whites.


Zippy: I understand your point. I really do.
Oh, no you don't. Because if you did, you'd have already stuffed a sock in the "liar, liar, pants on fire" rhetoric, not to mention the whole "I'm entitled to a hearing" schtick.

Let me help you with a further clue. Your arguments in particular, and your speech, are not things which are entitled to my attention. In fact, outside of the Internet my attention can be a rather expensive thing to acquire, unless I really like you, and in your case that wouldn't apply.

Arguments which get my attention earn that attention in some way, at the very least by being presented respectfully, or at the very very least don't go out of their way to drive my attention away with raving insults directed at my fellow W4 contributors. As I said, if you were talking to me, or if this were my thread, you'd have been gone at the first accusation of dishonesty, completely independent of any evaluation of the objective merits of anything else you have to say. Given that it isn't my thread and you haven't been stupid enough to say something like that to me, the status is that I don't care what else you've said in the thread, nor how much you really, really believe it, or believe it has merit. Absent an appropriately obsequious apology, your words mean nothing, are the mere banging of a gong.

Is that more clear?

I agree with Zippy. Whenever someone has to resort to "liar" or "stupid" in order to account for sharp differences of opinion over which reasonable people can disagree, that person has chosen emotivism over reason as the coin of his philosophical realm.

I know that at times we can all cross the line when our passions start to direct our reason. I have been guilty of this on more than one occasion, and I am grateful when friends point this out.

Nevertheless, having been at the receiving end such a tactic by bloggers over which I have no control, I will not tolerate it here.

I do not see how I am obligated to recognize and endorse same-sex relationships, which is essentially what a so called "right" to same-sex marriage is. I also do not want the state undermining what I believe to be true. Marriage is a union between one man and one woman, thus it makes no sense to say a union between a man and a woman is a union between a man and a man, which is exactly what "gay marriage" implies. If the government that represents me wants to say otherwise, then I will do what is in my power as a citizen to prevent that from happening.

What all of this shows is that liberal neutrality is incoherent and what really gripes me is how liberals can accuse their opponents of "legislating morality", while they simultaneously attempt to legislate the most rigid and dogmatic moral code, which they base on the idea of equal freedom. As was noted earlier, James Kalb explains how "equal freedom" is not liberating, but totalitarian and tyrannical.

I read this blog to learn from people more knowledgeable than myself. There are certainly no stupid commentators or intellectual frauds here. Anyway, I thought I would throw in my support.

Andrew T., I gotta say that while I empathize with your sense that your concerns are not being honestly addressed--especially since you've obviously taken a lot of time to gather your thoughts, you need to step back and ask yourself whether it's possible that you are not reading Francis's comments accurately. So step back and ask yourself that.

I'm not sure if the problem is that certain words/ideas mean different things to you two, but for some reason it looks like (to an outsider to the conversation) that you are talking past each other, and then you accuse Francis of dishonesty when it seems, at least to me (and I could be wrong but I don't think I am), that you just are not understanding what Francis means and what he does not mean.

It seems to me that Francis is saying that the historical and legal context of the laws and legal opinions concerning miscegenation involve the idea of race mixing not simply in the sense that a married couple itself is "mixed" but also in the sense that their children would be racially mixed (not one sense, but both), and so procreation is part of the essential legal and historical context to which the laws (explicitly and/or implicitly) refer. This seems clear from his citations and so I'm wondering where the confusion lies. Is it because you don't consider the historical and legal context as an essential part of what a law means, and would rather simply look at the text only?

or root for the Texas Longhorns

Now I understand why Baylor's school colors include green - envy.

"Now I understand why Baylor's school colors include green - envy."

Best. Comment. Ever.

BTW, Albert is spot on.

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