It gives me no pleasure, but, convalescing at home from a bout with a flu and casting about for suitable internet reading material, I happened upon another Thomas Fleming column, this one on the California Supreme Court's pursuit of the logical puzzler of whether the California state constitution is unconstitutional. That constitution provides for a referendum process, and the outcome of one of those processes was that homosexual "marriages" were proscribed, existing ones nullified in the process. The argument, of course, is that the constitution secures "equal rights", or the "equal protection of the laws", and that it is thus a sacrilege against equality that a majority should vote to "revoke" the "rights" of a minority. The resultant egalitarian paradox - that certain persons are effectively rendered more equal than others - either escapes the intellects of the plaintiffs, or is actually embraced, cynically, as an element of the managerial reconstruction of public sentiments.
Fleming's piece, however, is vexing on numerous levels, which I will not be able to explore fully - mainly because, being ill and fatigued, the prospect of churning out 5000 words on the subject strikes me as unappealing, but also because the subject is inordinately complex, and implicates a plethora of questions best explored in multiple posts, whereas I intend to produce only one. Perhaps that is unjust, but that is blogging. Hopefully, the subject will receive further explication as the thread unfolds.
Fleming's argument is, first, that religious arguments against the deconstruction of marriage are futile and ineffectual:
I hate to pour cold water on good intentions, but religious arguments are of no great validity in a country without a national religion. Many Protestant sects–Obama’s pseudo-Christian United Church of “Christ,” for example–endorse Gay Marriage, and of the groups that oppose it, e.g. Mormons and Catholics, they agree on so little else, beginning with every item of the Nicene Creed, their united opposition amounts to nothing more significant than a single-issue tactical alliance whose members are united only in what they reject and not what they affirm.
If we are once clear that America is not a Christian nation, we can give up futile crusades based on a fantasy.
Second, while religious arguments and the strategy of co-belligerence are both fruitless and misguided, natural law is also a waste of time:
Catholics will retort that this is a natural law question, but this, again, is a futile argument in a country where 1) there is no widespread acceptance of natural law theory, and 2) even advocates of natural law disagree. Such arguments may well be binding on our conscience–though hardly as much as the universal Christian tradition against homosexuality–but they can play no effective part on the political stage. If natural law is what Robert George and George Weigel say it is, then it is as often a tool of leftist revolution against Christendom as it is a weapon of defense.
As regards Fleming's first point, all that the diversity of incommensurable normative discourses establishes is that there will be ongoing social conflict between the partisans of various doctrines, until one sect, or combination of sects, prevails. Culture is the form of fighting before the shooting begins, as Philip Rieff reminded us. So, there is no widespread acceptance of natural law doctrines, or their implications? Well, isn't that what we're fighting about? Was it imagined that, by means of an irenic exploration of the implications of some ethical doctrine, we would arrive, by some non-conflictual manner, at a consensus regarding the immorality of certain things? The repeated emphasis upon non-acceptance of natural law thinking is queer, as though, in response to the observation that we are fighting cultural wars because we do not share a common ethical discourse, Fleming is arguing that because we disagree, there is no point in fighting. It's just a non-sequitur.
As regards Fleming's second point, has this not been covered already, if by implication, in the previous thread? There is no disagreement on this subject among scholars who actually understand the natural law, so Fleming, in articulating this point, is either repeating his first point unawares, or is obfuscating what the natural law is.
Finally, as regards that dig at George and Weigel, what can one possibly say, except that Fleming here conflates natural law and modernist doctrines of natural right, whether Hobbesian/Lockean, Rousseauvian, or what-have-you, the two being distinct and irreconcilable - the former being predicated upon a teleological anthropology and all variants of the latter being predicated upon anthropologies of affects, drives, and passions - notwithstanding the fact that some natural law theorists articulate their views in terms of rights? Is Fleming actually implying that teleological doctrines of human nature are instruments of leftist revolution? Not teleological doctrines of societal development, but of human nature, that there is a gap between man-as-he-is and man-as-he-is-meant-to-be? If so, then perhaps every ethical dogma to arise since the close of the paleolithic has been an instrument of leftist revolution.
The salient question in all of this is, for Fleming, the political one, and it is on this account that there really are no differences between the warring factions - they are hypocritical Jacobin democratists, all:
The question, as both sides really know, is a political one. But what political principles are at stake? None, it would seem. Each side is willing to appeal alternately to the voters, by way of referendum, or to the Courts, in appeals to the principles of equality and human rights, or to the direct action, in stirring up the less stable elements in public demonstrations.
This time round, the issue is fairly narrowly drawn. Supporters of Proposition 8, including former special prosecutor Ken Star, who has presented a brief on their behalf, argue that the people have spoken through a referendum, and that in appealing to the Courts, Gay Marriage advocates are ignoring the will of the people.
Leading opponents, like Gavin Newsom, the San Francisco mayor who gained notoriety for “marrying” homosexual couple, argue that the principle of equality should prevent a whimsical majority from denying fundamental rights rooted in the principle of equality.
Now, I freely admit that both sides are misrepresenting themselves. If the shoe were on the other foot, Newsom would be arguing for the right of the majority to legalize Gay Marriage and Star would be appealing to the wisdom of the Court to prevent this exercise of mob law.
The essential fraudulence of the opponents of Proposition 8, and, by implication, the opponents of deconstructed marriage, is thus, on Fleming's reasoning that they believe that
... basic moral principles [should] be decided either a democratic political process, whether the decision is made by a direct referendum or by democratically elected representatives or judges or by judges appointed by democratically elected public officials.
It is far from clear that the opponents of the deconstruction of marriage law are actually arguing, as a substantive matter, that moral principles should be determined by public and democratic processes, as opposed to making the procedural point that, under the systems of law we have in this country, the judicial branches are not licitly empowered to legislate on these questions. But leave that to the side, for the more consequential point here is the sleight of hand, the equivocation about to take place - from the idea that the nature of marriage ought not be determined by political processes and authorities, to the idea that a defense of the nature of marriage is, properly speaking, beyond the legitimate mandate of the political, and beyond the competence of the state:
Marriage, until very recently, was never a mere contract between individuals or a government-created institution. Legitimate societies have always been interested in regulating inheritance laws, discouraging a decline in the reproduction of citizens, and in preventing dilution of the citizen ethos by marriage with non-citizens, but government has not, typically, defined marriage and the family, much less redefined them. The exceptions are the Jacobins of the French Revolution and the ideological states of the past 100 years, principally Marxist and democratist states.
(Snip - from the comments)
The right-to-life ideology is hopeless and is best ignored. They are well-intentioned people but entirely muddle-headed. What do they imagine the state to be? Is it a universal form of organization found everywhere and possessed of the same duties and rights? Obviously not. Since this is the subject of the book I am at work on, I will confine myself to a few brief points: 1) The state is an historically invented phenomenon, and, depending on definition it was either invented in the ancient Near EAst (a proposition I do not accept) or at the end of the Middle Ages. In either case, political organizations is a varied phenomenon. In general, the household has been a castle into which rulers do not intrude except in extreme cases–treason and great crimes like murder. 2) In the Christian world, it was the Church’s job to regulate marriage, not the state’s. 3) The transfer of authority from Church to state has been one of the great mistakes of the Renaissance/Reformation, and the consequences include state education, child protection statutes, no-fault divorce, and Gay Marriage. Enough is enough. 3) The language of the common good being invoked is Marxism with a human face. Decent societies never entrusted the rulers with some authority over private and family life as modern states possess.
Without desiring to belabour the point, this is, notwithstanding its historical truth in outline, purely hieroglyphic, in the Voegelinian sense of a form of discourse which somehow marches onward even though its historical, social, and material conditions have been espied by Minerva's owl in the shades of night: Where once this discourse evoked concrete social circumstances, it now evokes nothing at all, save the desire of some to both acknowledge reality and pretend that it is something other than it is. For while Fleming acknowledges the reality of the modern managerial state and its deformations of the moral life, it is fantastical to imagine that, if only we were to expose the nakedness of this idol, returning to our non-existent communities to undertake the impossibility of enforcing moral norms upon people who, in liberal society, will always have the option of checking out, like good voluntarists, whenever their whims are thwarted, the reality of the managerial state would somehow be altered. No, it wouldn't. The de facto moral orthodoxy would be that marriage is a purely private, voluntaristic contract, which the state either recognizes as such or takes no notice of, and those who dissent from this vision of (dis)order would be but one more voluntaristic faction among others, paradoxically creating themselves socially as people who do not believe that social formations are artifacts of will. The liberal/leftist doctrine that moral order and social order are artifacts of will would remain pristine in its operations, functionally the de facto orthodoxy of the society. However, the elect would at least remain untainted by the ontological evil of The State - if, that is, The State deigned to leave them to their conventicles, which it wouldn't. There is, in the end, an atmosphere of despair here, a sense, not that a mere political campaign is fruitless, but that an entire life-world must be hastened to its ultimate desolation, regardless of the consequences in the interim - which will be, beyond all caviling, the indefinite enthronement of a voluntaristic ethic and a state predicated upon that ethic, as upon an orthodoxy.
That's the thing about such hieroglyphic discourses - they are also anachronistic. The Church will not in my lifetime or the lifetimes of my great-great-great grandchildren reclaim her historical powers to regulate marriage, and to enforce its canons, not by the slender, frail reeds of consent and persuasion, but by means of the real historical sanctions she once imposed upon violators. It is not now a viable option to restore such powers to the ecclesiastical domain, and in the necessary absence of such a restoration, it is political authority, and political authority only, in the West, that will have the power to regulate such human affairs; but by pretending that the hieroglyph is real, we will only ensure that this authority is exercised against any tradition we would care to uphold.
1) Yes, I am cognizant of the facts that the modern state, in its origins, legitimating myths, and operations, is inextricable from the dubious modernist anthropologies I decry, and that, to that extent, asking the modern state to contravene its own inner essence by upholding a teleological conception of marriage is profoundly paradoxical, if not incoherent. What must be acknowledged, however, is that renunciation and abstention are still choices, and that the option of withdrawal does nothing, theoretically or functionally, but ratify the voluntarism of modernity and the modern state. Does the presence of the Amish in our society, as a subculture, alter in any meaningful way voluntarism of our religious, economic, and moral lives? No? Neither will the quasi-libertarian idea that marriage shouldn't be a state prerogative.
2) When Fleming writes that "If the state is simply an organic expression of the way people live together and work out their problems, it should not really be called a state but something else, like commonwealth, republic, politeia, or civitas. In either case, it does not exist to create or enforce virtue, as Thomas says, but to maintain conditions favorable to a virtuous life.", I think that he both misconceives what it is for a state to arise organically from the life of a people (for a political system to be organic is for it to be rooted in the traditions of the people, yes, but a people's way of working out problems always involves the enforcement of moral norms: organicity and morals legislation are not inconsistent) and places too much polemical weight on the notion of conditions favourable to a virtuous life, as though the enforcement of moral norms and the creation of conditions were radically distinct conceptions. Modern conservative fusionists prated about the conditions of a virtuous life, and all that entailed was an abstract liberty, the social vacuum within which people, if they willed, could practice virtue. However, does it conduce to the practice of virtue to permit people to pretend that not-marriage is marriage, and vice versa? That is, does the widespread acceptance of a defective moral ontology, a moral nihilism, conduce to the practice of virtue merely because everyone is nominally free to accept or reject, as a private matter, this moral anti-ontology? The habituation of men in virtue or vice, and the sociality of human nature, notwithstanding the appeal to St. Thomas, have vanished from this discourse, much to its impoverishment. It would seem that the modernist dialectic of state and individual has not been transcended, after all.