What’s Wrong with the World

I'm afraid I can't put my response to this news much better than Auster put it at VFR:

[I]f the Supreme Court ultimately upholds Walker and shoots down Prop. 8, that would be...the end of any plausible connection between the historical and constitutional America and America as it now exists. It would mean that the United States of America has officially become a lawless, radical-leftist regime...

Between this and Casey's "sweet mystery of life" nonsense, the rule of law is effectively dead. I suggest mass civil disobedience in the form of petty crime, with the defense relying on this decision and Casey. "Shoplifting is how I define my own concept of existence, which is the heart of liberty. And morality has no basis in legislation, anyway. I rest my case." Seriously: If even 100,000 Christians did that, what would happen? The insanity of this system would be laid bare.

I have confidence that there are at least 2 or 3 Appeals Courts that would easily and quickly see through the stupidity of this Judge's "reasons". Unfortunately, the 9th is not one of them. It might, you know. It did actually reverse on that homeschool rule last year. But there is a time and a place for the people rising up in anger over one man's despotism, and this judge has hit that line. Again. Impeach the jerk. Californians should demand his removal immediately.

It did actually reverse on that homeschool rule last year.

It did? I thought that was the original trial court that reversed itself upon receiving more evidence about the meaning of the law.

Two quotes from the opinion.

“The evidence shows that the movement of marriage away from a gendered institution and toward an institution free from state-mandated gender roles reflects an evolution in the understanding of gender rather than a change in marriage. The evidence did not show any historical purpose for excluding same-sex couples from marriage, as states have never required spouses to have an ability or willingness to procreate in order to marry. Rather, the exclusion exists as an artifact of a time when the genders were seen as having distinct roles in society and in marriage. That time has passed.”

“Race and gender restrictions shaped marriage during eras of race and gender inequality, but such restrictions were never part of the historical core of the institution of marriage.”

It looks like reality is just the cast of Friends: there are no mothers or fathers, men or women, just people shacking up for a time and then moving on. If the nature of marriage is so malleable, so is the nature of law, government, and children. The future will be lonely for so many millions who will think it a mere artifact of bigotry to connect their lives to patrimony or progeny, that any two persons are somehow naturally connected to them in an intimate and important way. Combine this "insight" with our economic woes, we are both bankrupting and bastardizing those yet to be born. The future is for broke orphans.

Don't forget that the rule of law itself depends on history. So, when a federal judge says history doesn't matter, he is saying that the rule of law does not matter.

Discuss.

Has it been confirmed that this judge is himself homosexual and has been involved in pro-gay politics in his "off-hours?" Savage said that on his radio show last night.

I wonder how long this goes on. You can only goad and insult people so long, but to add to the mix the fact that their vote can be rendered meaningless,and on behalf of the latest manufactured right, why it may occur to some that other possibilities of recourse present themselves.
What happened to the good old days, the days of about a 1 1/2 year ago, when liberals [?] fought against dark forces, "forcing their will on us"? Or was all that just a glandular eruption, or a running tic of the nervous system? It couldn't have been principled.

It is interesting to note that the judges opinion is couched in the worthless, politically-charged academic language of gender that has poisoned many a humanities department. Now, we get to see such a ridiculous framework moved out of the ivory tower and into real life.

And in a move that is downright shocking in its predictability, Vox Nova sides with the pro-SSM crowd and promptly blames Republicans. It's like clockwork.

I don't really want to know, Zachary, but a morbid curiosity moves me to guess: It's the Republicans' fault because they wouldn't wholeheartedly embrace civil unions, which would have been a compromise, so that the SSM crowd would not have been forced to go to the courts and press further? (Do I get a prize if I guess the VN line? I swear, I haven't looked.)

No, it's the Republicans' fault because their slavish (and undoubtedly closet-Calvinist) devotion to individuality stripped marriage of its sacredness long ago. Of course, the left had no part in this, since they only have agency insofar as the right forces their hand.

Actually, no, that's not the line. The line is that heterosexuals themselves altered the subjective understanding of marriage, from one oriented around sexual complementarity and procreation, to one predicated upon desire-satisfaction. Eventually, this was bound to have formal, legal consequences, which it has, and the next stage is the incorporation of homosexuals into the subjectivist/nominalist marital regime, because the regime of desire cannot exclude them, and because SSM has piggybacked on the campaign to eliminate other forms of discrimination against homosexuals, which campaign Morning's Minion is cool with.

Whether or not one accepts the argument about other forms of discrimination, the point about marriage is incontrovertible. The reference to serial polygamists like Limbaugh and Gingrich works because that sort of marriage is precisely what undermined the institution.

Ah, and since marriage was "stripped of its sacredness long ago," what the heck, we might as well give it state sanction between two men or two women? What does it matter? I'm getting the picture. (And Constitution Shmonstitution. Who cares about judicial tyranny? That's an issue for the right, which means by definition VN doesn't care about it.)

I suppose it would be pointless to tell that crowd that despair is one of the seven deadlies. Then again, I suspect they don't believe even as much as I do (a Protestant) in the sacredness of marriage anyway. Its invocation is all part of the pose--any stick with which to beat the Republicans.

Yeah, Maximos, it's all Rush Limbaugh's fault.

The little bit about "discrimination against homosexuals" is something we can pass over in a line, of course.

You're kidding right?

Neither MM nor I literally said that it was Limbaugh's fault. MM used Limbaugh as a rhetorical foil, as a paradigmatic case, an illustration of what destroyed marriage among heterosexuals, and I seconded that rhetorical trope. As a matter of simple sociology, and the interplay of social practices and ideas about those practices, you cannot have our divorce rate, and our understanding of marriage as a matter of preference-satisfaction, and not have SSM. Period, the end. This is not to state that everyone should roll over on SSM, although large swathes of the political right are about to do precisely that - because their treasures lie elsewhere - but that one must fight the entire postmodern deformation of marriage, in all of its manifestations. Postmoderns see through hypocrisy like x-rays going through flesh.

Well, Maximos, if _you_ are not going to roll over on same-sex "marriage," which I assume from all that you have ever written you are not going to do, then a little less bashing of the right would be appreciated. You may not like your allies, but the VN crowd are certainly your enemies here, and you should know your friends and welcome them, not take the opportunity to bash them for "hypocrisy" while echoing and applauding your enemies for their supposed insights.

And as I said, I realize that the issue of judicial tyranny and the complete loss of any notion of the United States as something other than a post-modern state governed lawlessly might seem tired and old to some people (I don't know why--maybe because Rush Limbaugh is concerned about it?) but it _is_ part of what is going on here and part of the horror of the situation. I give Auster a great deal of credit, despite his not being "mainstream," for realizing and saying that in no uncertain terms. Those concerned to distance themselves from the mainstream right sometimes don't want to seem to care about it.

The line is that heterosexuals themselves altered the subjective understanding of marriage, from one oriented around sexual complementarity and procreation, to one predicated upon desire-satisfaction.

Right, which for MM can only be an emanation of the pernicious strain of Calvinist individualism that haunts the American right and damns all of their activities. Like I said.

I have no problem with rightly denouncing widespread abuse of the sacrament by heterosexuals such as Limbaugh and Gingrich, nor with recognizing that this abuse has contributed significantly to the undermining of the institution. What I do have a problem with is the refusal to recognize any agency in the matter on the part of the left. The injunction 'don't blame liberals now, blame conservatives fifty years ago' is hogwash, since it refuses to hold the left responsible for the further defilement of marriage. Just because someone left the door open doesn't mean it's okay to go inside and trash the place, and anyone who does should be recognized as what they are: a vandal, of their own accord.

Yo Maximos, just wondering, did Bill Clinton "serially" assaulting women have anything to do with the imagined state of marriage as "destroyed", which I didn't know it was btw.
Just a return rhetorical trope you know, a flop of the partisan mop, a game two can play, no matter how grotesque, fun for all.

Other then that, your usual profundity.
Don't whine, I've left you alone for a while.

Well, the issue of judicial tyranny has never worn old with me; I'm opposed to it whether it occurs on the right or on the left, for it occurs, or rather, is visited upon us, from both directions. This instance happened to originate with the left, as have most of the
momentous instances of judicial overreach in our era.

As regards political friends and enemies, well, I'm content to state that I have few of the former, precisely because I seem to have so many of the latter. Why do I say this? Because they have told me so, times without number. I'm truly puzzled by the admonition to withhold critiques of the right, when the right has never withheld its critiques of the alleged heretics in its ranks. How many times has the right, or some faction thereof, excommunicated those holding beliefs I share? It's not much of a friendship if I'm an unpatriotic socialist, except when I'm needed on some social question, now is it?

I'm interested that true things be uttered, and pondered, regardless of who utters them, and I define my allegiances by what is true.

Lydia,

I just want to say amen to this important comment:

"And as I said, I realize that the issue of judicial tyranny and the complete loss of any notion of the United States as something other than a post-modern state governed lawlessly might seem tired and old to some people (I don't know why--maybe because Rush Limbaugh is concerned about it?) but it _is_ part of what is going on here and part of the horror of the situation. I give Auster a great deal of credit, despite his not being "mainstream," for realizing and saying that in no uncertain terms. Those concerned to distance themselves from the mainstream right sometimes don't want to seem to care about it."

This has become an important theme for some on the right, certainly for my friend David Frum, but for others as well (*cough* Maximos *cough*). Jonah Goldberg has been dealing with this topic very well lately as it just came up again thanks to a recent column by David Klinghoffer of all people:

http://article.nationalreview.com/438954/conservative-nostalgia-is-misplaced/jonah-goldberg

I think ultimately the solution is to forge imperfect alliances with those who will help us (meaning Christian conservatives) achieve our goals while at the same time keep up the hard work of convincing people of the truth. I have to believe that over time, slowly but surely the truth will win.

Right, which for MM can only be an emanation of the pernicious strain of Calvinist individualism that haunts the American right and damns all of their activities.

You write that as though it were wholly untrue. In reality, numerous historians, social critics, and philosophers have noted that there occurred in American history a Puritan declension, according to which the old Calvinist certitudes became ever more attenuated into the valorization of the individual, and the belief that worldly success betokens personal virtue: the sweet mystery of life and money-culture. The right and the left alike partake of this nonsense, albeit with variations: tema con variazioni.

The injunction 'don't blame liberals now, blame conservatives fifty years ago' is hogwash, since it refuses to hold the left responsible for the further defilement of marriage.

I don't believe that to be the actual argument; the actual argument, as I take it, is that it is pointless and vain to make an unprincipled exception on this question of SSM, after we've already swallowed contraception and the divorce culture.

Yo Maximos, just wondering, did Bill Clinton....

Clinton's transgressions were a product of this sexual deformation, and if you want to employ them as a symbol, go right ahead. Although, to be fair, Clinton's transgressions were altogether more 'traditional', after the fashion of so-called great men throughout history, honouring the vow in word if not in practice.

I hate to be the one to break it to you, Maximos, but it isn't all about you. It's about things like, you know, the complete annihilation of the institution of marriage, to the level of tearing it apart into atomic units, by the bare-knuckled, utterly lawless, and red-clawed Left. Which is what the post is about.

I still have hopes that Walker's decision will be overturned. Given the misguided view in our country that the diktats of judges are "laws," I'm afraid that is at this point our only hope for this to be stopped. Beyond that, we should definitely be looking for widespread civil disobedience at all levels of society: By justices of the peace, by people who own businesses and refuse to treat their homosexual employees with sexual partners as "married" for purposes of benefits, etc., by teachers in schools, and so on and so forth.

the actual argument, as I take it, is that it is pointless and vain to make an unprincipled exception on this question of SSM,

Which is also false, and is the sort of counsel of despair I would expect from the VN crowd (because they don't give a damn anyway) but not from the guy who used to raise my spirits by referring spunkily to (if I recall the phrase correctly) "homosexual simulacra of marriage."

I'm interested that true things be uttered, and pondered, regardless of who utters them, and I define my allegiances by what is true.

Cultivated and pompous ennui.

I suggest mass civil disobedience in the form of petty crime,

We cannot do evil that good may come of it. However, we can resist the law in whatever way feasible, as an immoral law is no law at all. So, while we can't go around committing petty vandalism against SS businesses, we could refuse to accomodate or recognize their SSM. In fact, we are obligated to so refuse.

Impeach the jerk. Californians should demand his removal immediately.

Being a federal judge, that would have to go throught the US Senate. Californians could appeal to their senators to bring proceedings. Who are their senators again? Oh yeah, never mind.

If we on the Right would have gotten as upset about no-fault divorce 30 years ago as we are about this issue today, maybe we wouldn't be in this situation.

Marriage as an institution has been diluted and marginalized, and it is wrongheaded to ignore the fact that individualism and consumerism have played a part in that.

Vox Nova sides with the pro-SSM crowd and promptly blames Republicans.

Well if they are siding with the SSM crowd, then shouldn't they be crediting and praising the Republicans for bringing this about?

Also, if they are siding with the SSM crowd, wouldn't that put their alleged good Catholic standing in doubt?

Marriage as an institution has been diluted and marginalized, and it is wrongheaded to ignore the fact that individualism and consumerism have played a part in that.

I don't disagree that the well has been poisoned, but pardon me if I don't join in the ceremonial pouring of the last flask.

not take the opportunity to bash them for "hypocrisy" while echoing and applauding your enemies for their supposed insights

Bashing, echoing and applauding aside, Maximos is objectively correct.

You write that as though it were wholly untrue. In reality, numerous historians, social critics, and philosophers have noted that there occurred in American history a Puritan declension, according to which the old Calvinist certitudes became ever more attenuated into the valorization of the individual, and the belief that worldly success betokens personal virtue: the sweet mystery of life and money-culture.

the actual argument, as I take it, is that it is pointless and vain to make an unprincipled exception on this question of SSM, after we've already swallowed contraception and the divorce culture.

BTW, if the introduction of VN into this discussion constitutes a threadjack, my apologies.

after we've already swallowed contraception and the divorce culture.

Those of us born after, say 1970, didn't have much say in it, did we? Or did the stain of Original Calvinism get passed to us as well?

Given the misguided view in our country that the diktats of judges are "laws,"

That view has a long pedigree, predating our own country's founding.

I]f the Supreme Court ultimately upholds Walker and shoots down Prop. 8, that would be...the end of any plausible connection between the historical and constitutional America and America as it now exists.

This is obviously false.

An observation and a friendly (really) suggestion for my friends on the Right. One important ingredient of this case (and likely of future court proceedings on gay marriage) are factual issues about such matters as the effects of gay marriages (on children, on the institution of marriage, etc.). And on that, in this trial, as all reasonable people on both sides of this issue can (and do) see, the backers of Prop. 8 did a truly pathetic job. After they withdrew most of their witnesses, the two they were left with were awful on the stand. Just to give a taste, from the ruling:

Blankenhorn's book, The Future of Marriage, lists numerous consequences of permitting same-sex couples to marry [...] Blankenhorn explained that the list of consequences arose from a group thought experiment in which an idea was written down if someone suggested it. (p. 46 of the ruling)

‎During trial, Blankenhorn was presented with a study that posed an empirical question whether permitting marriage or civil unions for same-sex couples would lead to the manifestations Blankenhorn described as indicative of deinstitutionalization. After reviewing and analyzing available evidence, the study concludes that "laws permitting same-sex marriage or civil unions have no adverse effect on marriage, divorce, and abortion rates, the percent of children born our of wedlock, or the percent of households with children under 18 headed by women." Blankenhorn *had not seen the study before trial* (!!!) and was thus unfamiliar with its methods and conclusions. Nevertheless, Blankenhorn dismissed the study and its results, reasoning that its authors "think that [the conclusion is] so self-evident that anybody who has an opposing point of view is not a rational person. (p. 47 of the ruling

(emphasis, incl. exclamation marks added: even I, who follow this issue only very casually, had heard of that study)

Well, you can't just go by those two snapshots, but I'm confident that if/when you review the case, you should agree that this was a very bad showing by the defenders of the Prop.

I don't know how good an empirical case can be made for the kinds of factual claims so often made by opponents of gay marriage, but putting together the best case possible would seem to be a very good idea at this point.

(The paragraph right after the italicized one should also have been italicized: it too is a quotation from the ruling)

One important ingredient of this case (and likely of future court proceedings on gay marriage) are factual issues about such matters as the effects of gay marriages

That should absolutely not be part of the question of whether this is constitutional. That it was considered to be so is a sign of how far the declension of our country has already gone in legal terms and in terms of the insane power of federal judges. Those considerations would be appropriate for a legislature or for the people voting on the amendment of the California constitution.

Auster: "I]f the Supreme Court ultimately upholds Walker and shoots down Prop. 8, that would be...the end of any plausible connection between the historical and constitutional America and America as it now exists."

Alex H.: "This is obviously false."

Care to expound on that, or are we just supposed to accept your ipse dixit?

Any discrimination must pass a 'rational scrutiny' test in order to satisfy the 14th Amendment. Keith is correct in setting down the rules of the game. One argument has been that children in gay households will have worse outcomes. The evidence hasn't shown that, although I'm dubious of the evidence. Rational scrutiny isn't a very safe place to make a lot of arguments against gay marriage. A lot of the arguments against same sex marriage are indeed reckless and likely lacking foundation.

If the case is going to be reversed, which I think is going to be easier said than done, the argument is going to be I think as follows. Specifically, the normative case is that marriage is for the benefit of children. That marriage can be more inclusive than those desiring children is incidental. That children can't enter a gay household naturally is a rational basis for exclusion. Other households could be excluded from marriage by an inability to conceive (or other rational basis), but their explicit exclusion is not necessary for an exclusion based on natural ability to conceive to hold.

Ok, then, don't prepare a better empirical case. If one turns out to be needed at, say, the Supreme Court, I'm sure Miller and Blankenhorn will do just fine there. :)

“Race and gender restrictions shaped marriage during eras of race and gender inequality, but such restrictions were never part of the historical core of the institution of marriage.”

The ambiguous conjunction. I learned this in 8th grade.

If A and not-B, then not(A and B).

One could similarly say: Voting and Papal Blessings have never been at the core of American government. How does this not get overturned?

Legally, the judicial decision is overreaching of a sort which, if allowed to stand, will be even more destructive of the rule of law than Roe has been. Philosophically, I both agree and disagree with Maximos.

I agree that, if married couples who could procreate can, consistently with the objective nature of marriage itself, permanently exclude children, then there is no philosophical reason why civil marriage must be limited to people who together can perform the sort of act that's naturally apt for procreation. The question would be purely a matter of positive not natural law. On that level, the question to be asked is whether society as a whole benefits more by restricting civil marriage--or at least its legal benefits--to those who can procreate together than it would if there were no such restriction. I think the answer is yes, as do many others. But apparently, nobody's satisfied with leaving the legal issue at that level.

The homosexualists certainly won't allow debate in such terms, as Judge Walker's arguments (such as they are) show. They think their morality is obviously true, and that those who reject it are beyond their rights in seeking to preserve such an error in law, even if the people have voted to amend the constitution for that purpose. That's why it's so outrageous that Walker rejects Proposition 8 as based, in part, on a "moral" premise. The plaintiffs' view is based on a moral premise too: that it's "unfair" to restrict marriage to people who can procreate together.

Problem is, that argument has some force if marriage need not retain any intrinsic relationship with procreation. To that extent, Maximos is right. But of course, life itself is "unfair," and that's not going to change by striving to give everybody equal "rights" to something on whose very nature there is profound disagreement.

(my last comment was in reply to Lydia, not M.Z., whose comment i didn't see until after i had posted my own)

The "rational basis" test used to be extremely easy to meet. Scalia's dissent on this in the Lawrence decision is scathing. Judges are now claiming to be applying a "rational basis" test when they are really applying strict scrutiny. In other words, they are being deceptive. The idea that we have to have extensive studies showing that children "do better" (according to some standard of "better" that judges are going to accept) to pass what should be (and is in other case) the extremely easy hurdle of a rational basis test _ought_ to be legally absurd. The only reason that it isn't is precisely because the deceptive use of "rational basis" as if it were the same as "strict scrutiny" (by treating "rational" in this legal context as some sort of very _high_ standard) is now becoming common when considering those issues such as homosexuality that are sacred to the American left. In other words, sheer power politics as usual.

Remember, this is the entirety of the constitutional amendment:

“Only marriage between a man and a woman is valid or recognized in California.”

To believe that, according to Judge Walker, is irrational. Thus, citizens who will not acquiesce in their public lives--i.e., in the businesses they own, in the schools they send their children--have absolutely no rights. You are a bigot, pure and simple. There is no middle ground here.

Folks, get ready for the persecution. The premises are in place. If religion is "just worship" (thank you, President Obama), and if your beliefs about marriage are irrational and bigoted, then the state cannot be stopped. They may take your children and give them to gay couples, since, after all, you are "abusing them" by teaching them "hate." Again, the argument will be made: you have a right to believe what you want, but you shouldn't force your children to believe it. And whose to say they are your children? Is it because of genetics? Well, that's just racist, and it implies that the children of gays because they are not genetic are "inferior." Oh, the premises are in place. It's coming.

Right, TA. And your point dovetails with mine about the rational basis test. Let's think about this for a minute: Now the "rational basis" test apparently means that the judge is to be treated _exactly_ like a legislator, that anyone who wants to be able to pass any law or make any definition that has legal ramifications in the United States (for remember, any law favors some people--the ones who don't break it--over others--the ones who do break it) must present to the judge extensive sociological data regarding the consequences of having or not having the law which must be convincing to the judge (or at least to Keith DeRose) as meaning that *it is a good law*, or else the law can be struck down as violating "equal protection." This is rank insanity. The whole reason that there are supposed to be levels of scrutiny of laws is because of the presumption that the people and their representatives are governing themselves. They don't have to convince the judge that the law should be in place or that dire consequences will follow if it isn't. That was _never_ the meaning of the lowest level of judicial scrutiny. If it is, of course, then all that conservatives have ever said about legislating from the bench will be proven true in the most literal of senses.

But of course liberals do not care.

Because, as I said, this is all about power. Everything else is just a smoke screen.

To tell you the truth, one of the things I am most grateful about at W4 is that I can say these things openly. I don't have to play nicey-nicey with the liberal commentators who show up and pretend to be about something other than power, pretend to be oh-so-reasonable, and want to waste my time. I'm tired of that. They think they can abuse the people of the United States, rule in the most blatantly lawless and power-hungry ways, and that we will get up after being knocked down and be convinced that somehow it was *our fault*. "Don't you understand? Your side didn't play by the rules. See, it was really their fault. Don't blame the judge."

There is a name, though it escapes me for the moment, for a psychological syndrome in which the victim of repeated abuse becomes convinced that he is to blame for what his tormentor does to him. Battered wives are often led by manipulative husbands to think in this way.

I refuse to be that kind of a dupe.

I hate to be the one to break it to you, Maximos, but it isn't all about you.

Whoever said that it was? I certainly never said that it was all about me. If anything, the right-wing heresy hunters had already made it "all about the dirty heretics who believe x, y, z, and whatever". It cuts both ways. The heresy hunters cannot simultaneously police dissent on a legion of questions, singling out persons and factions for expulsion and delegitimation, and turn around and condemn them for considering themselves a group apart. If I'm alienated from 'the right', it wasn't my doing.

Beyond that, we should definitely be looking for widespread civil disobedience at all levels of society: By justices of the peace, by people who own businesses and refuse to treat their homosexual employees with sexual partners as "married" for purposes of benefits, etc., by teachers in schools, and so on and so forth.

The spirit of martyrdom is quite dead. I could explain some of the reasons why, but the exercise would step on some toes, and then I'd be told that it's not all about me.

Which is also false, and is the sort of counsel of despair I would expect from the VN crowd (because they don't give a damn anyway) but not from the guy who used to raise my spirits by referring spunkily to (if I recall the phrase correctly) "homosexual simulacra of marriage."

How is it false that the culture of contraception and divorce, coupled with the lifestyle hedonism of late capitalism, have brought us to this point? Whatever. It is still the case that homosexual unions are simulacra of marriage, inasmuch as they are ontologically and biologically impossible.

Cultivated and pompous ennui.

Whatever. I'm not a team player. Suck it up.

The problem, though, is when it becomes all-encompassing, and every single thing the right does is seen as illegitimate because of some shared genealogy with Calvinist ideas.

It would be false to associate every aspect of conservatism, or even vulgar right-wingery, with cultural Calvinism. I don't know that anyone actually does this, but it is worth observing that cultural Calvinist reasons for anything are bad reasons.

Then the solution, it would seem, would be to vomit contraception and divorce from our collective body, rather than swallow another poison on the grounds of logical consistency.

Precisely. This is what I have advocated, for as long as I have been blogging.

This is obviously false.

How exactly? It's obvious enough that Auster is engaging in hyperbole; this one question is not, and cannot be - because no one issue suffices for this - THE issue that transmogrifies the American regime into something wholly other. Rather, there have been many such decisions irrevocably altering the historic substance of America. But this issue, given its potential to entrench certain trends in the culture, and to underwrite the erosion of parental and religious liberties, is assuredly significant? How is that observation false or mistaken?

I don't know how good an empirical case can be made for the kinds of factual claims so often made by opponents of gay marriage, but putting together the best case possible would seem to be a very good idea at this point.

Most of the empirical claims, given the current state of marriage, and the regnant sexual mores, will probably fail to pan out. In other words, much of the damage has already been absorbed. Rather, the empirical claims are desperate gropings, attempts to defend an ideational structure that is fast eroding, a sense that the world must be something more than our desires, more than what we will it to be.

Philosophically, I both agree and disagree with Maximos.

I'm completely unclear as to where we disagree.

'"One important ingredient of this case (and likely of future court proceedings on gay marriage) are factual issues about such matters as the effects of gay marriages'"

"That should absolutely not be part of the question of whether this is constitutional. That it was considered to be so is a sign of how far the declension of our country has already gone in legal terms and in terms of the insane power of federal judges. Those considerations would be appropriate for a legislature or for the people voting on the amendment of the California constitution."

Au contraire, this is what courts are designed to do in the Anglosphere and it is the essence of what being constitutional means in our system. District courts are finders of fact and, as Keith points out, the proponents of Prop. 8 didn't present any creditable facts.

Of course, he validity of those findings can't be creditably discussed by those who haven't actually read the opinion: most of the discussion above accurately reflects the quality of the defense presented in the case, "ipse dixit" as Judge Walker wrote.

You might also want to read the opinion as appellate courts are pretty much limited to those facts and those facts are likely to be the basis of the ongoing public discussion.

http://howappealing.law.com/FF_CL_Final.pdf

The problem with your analysis Lydia is that it does violence to any reasonable notion of checks and balances in our system. It would be a wonderful world if the legislatures and "people" were always rational, discounted raw emotion, and only considered facts. There may be such a nation in a parallel universe out in another dimension but, alas, it isn't ours. When the "people" or the legislatures (as well as the executive) go off the rails we only have the courts to balance things out.

Courts too can play Calvin Ball (Dred Scott, Cruikshank, etc.) but no system is perfect. Unless you can explain how what the courts did in Loving and Perez differs, your analysis fails.

Really, as long as marriage is seen strictly as a matter of law, we are going to get such nonsense. The law is malleable. Marriage is not. I'm afraid that if the framers of the constitution heard of what their document were being asked to support, they would have torn it up.

The Chicken

The "rational basis" test used to be extremely easy to meet.

Yes. Everything that follows this sentence is true. The trouble with rational basis tests, I think, is deeper than the deceptive employment of them, namely, that they are demands that the unwritten norms undergirding the positive law, the things that, for a given society, are presupposed by the positive law, be articulated explicitly. This is neither possible, nor desirable, in many instances; moreoever, the requirement that it be done either reflects the dissolution of those unwritten norms, or effects that dissolution, or both.

"District courts are finders of fact and, as Keith points out, the proponents of Prop. 8 didn't present any creditable facts."

Al, "rational basis test" does not require "facts," like the sort associated with social science data. It just requires "reasonable belief." Are you actually suggesting that it is not reasonable to believe that marriage is an institution in which male and female may join since they seem like beings ordered to that end? It is one thing to say you don't agree with it. It's quite another to say, as you and Judge Walker claim, that no one should agree with it.

Religious liberty, on the other hand, requires strict scrutiny. Since Judge Walker has admitted that the only reason to reject SSM is religious, and since religious liberty cannot be abridged without passing strict scrutiny, then all citizens required in the public and private lives to honor SSM may not do so if they have a religious reason not to. That makes sense, doesn't it? If you want to play the scrutiny game, it looks like a fundamental right that requires strict scrutiny trumps a liberty that only requires rational basis. Are you with me on this, al?

Maximos,

How is it false

What you said, which I called "false" is that it is pointless and vain to fight homosexual simulacra of marriage now that "we" (which presumably means something like "we, the American people") have already accepted the culture of divorce and contraception. But it is not pointless.

In fact, I will say this, even at the risk of offending someone: Suppose that you knew a man. Let's call him Joe. Joe is an evangelical Protestant. Joe believes that contraception can be legitimate provided he is convinced that the method in question is not abortifacient and provided it is only used in marriage. Joe also interprets Jesus' words about divorce differently from the Catholic interpretation and believes that there are cases in which divorce is permissible, though he opposes no-fault. Joe is _ardently_ opposed to homosexual simulacra of marriage.

Joe's opposition is not "pointless and vain." What is strategically a bad idea--perhaps even pointless and vain--is to tell Joe that unless he changes his views on the two other issues he is illogical not to accept homosexual "marriage" and might as well go along with the homosexual activists on that issue. For one thing, Joe knows that that's not true. He knows something about complementarity between the sexes, both in intercourse and in the formation of families, which is not and of necessity can never be instantiated in homosexual simulacra. So he knows that this unnaturalness is a particular reason to oppose the simulacra. He knows that his children's and grandchildren's innocence will be specially and particularly harmed if they are constantly confronted with couples whose entire relationship is and of necessity must be based on those acts of which the Apostle Paul said it is better not even to speak, and if they are told that these couples are "married."

Stop with the "all or nothing," guys. It's weakening our side at a crucial moment when we cannot afford it.

It is pointless and vain in the senses of those terms that we will lose, if not now, over this court case, then at some other case within the next generation. As I said early in this thread, postmoderns care very little for hypocrisy when they sense it in their adversaries - authenticity is all, for them, meaning the perfect self-coherence of stated convictions and personal behaviour, never mind the incoherence of the demand - and less still for the arguments, rational or otherwise, of those they deem hypocritical. That inconsistency in Joe's belief and practice, coupled with the divorce culture, will be employed to ram through this latest cultural novelty. It is to be hoped that this ruling will be turned aside, but the notion that we can have, in principle, childless marriages, while maintaining the complementarity of the sexes within marriage - that is to say, that marriage is about complementarity, but this latter can be reduced to simple physical pleasure - will not hold the tides indefinitely.

I think by rational basis, what Lydia alluded to is that the trial judge's review of the law is limited to whether the legislature or the voters, in this case, would have had any rational basis for determining Prop 8 served a legitimate government interest. Evidence is not even really needed to establish a rational basis necessarily (although it doesn't really hurt). Rational does not equate with strong or even good basis, and it's been a while, but i don't even think it has to be a stated basis. Anything the proponent can come up with that would give a rational basis is sufficient.

What the Court essentially did was usurp the role of the legislature (or voters, in this case), and he improperly re-weighed the evidence (such as it was) to determine if a rational basis existed to his satisfaction. On the contrary, his role is to (1) presume a rational basis existed, and (2) the opponents of Prop 8 had to disprove the existence of any conceivable rational basis. His job is not to re-wiegh the evidence and draw his own conclusion.

The gay lobby's overreaching on this may yet factor in to its reversal.

Maximos:

I'm completely unclear as to where we disagree.

I didn't make it clear, so you have a point. I shall clarify now.

We disagree, it seems to me, about whether the gay-marriage issue can and ought to be treated purely as a matter of positive law, with the case for or against it to be made in essentially utilitarian terms. With the Catholic Church, and not only the Catholic Church, I believe the state ought to recognize the true nature of marriage as something "given" prior to the state, so that the state forswears any competence to define the nature of marriage as though what's given weren't a given. But the fact is that most people, if and when they think at all, don't think that way anymore. What we have now is a de facto popular positivism about questions even as basic as the nature of marriage. That puts the question on the level of positive law, in the manner I suggested. I don't think you see things that way.

But if I'm right, of course, then Walker's moralizing is outrageous as well as self-inconsistent.

Best,
Mike

Actually, that is the way I see the matter. Given that this issue has been placed on the level of positive law in our society, it will play itself out largely as I've indicated, sadly. Positivism is merely the great-great grandson of nominalism, about which I've written, somewhere or other, that it is a dog's breakfast of error, theological and philosophical.

Al, tell me why, on your principles, we should not hand all these really touchy matters over to judges to begin with? Why even the pretense of republican or (in this case) democratic forms? Or, if that is too much for you, I ask: what is the reason for saying this matter in particular (curiously, like most all of those relating to sexual license) cannot be left to the self-government of Californians? Is it not a moral claim? Is it not a statement to the effect that marriage being an institution of such veneration and respect, homosexuals are deprived of the dignity of the rights vouchsafed to us by our forefathers, when the institution is forbidden to their participation?

But the judge in his opinion rules that the very things that give this institution the esteem sufficient to implicate the high principles of the 14th Amendment, are inadmissible in his court: veneration, religion, tradition, prescription. The New York Times this morning gives us a News Analysis which primly lectures us on how effectively the judge has "boxed in" appellate judges. As if the basic imposture of the whole thing were not obvious to anyone who thinks a moment. The opinion augustly rebukes the attempt to impose morality, in the course of imposing its morality on the people of the State of California.

I mean look at this stuff: "The evidence shows conclusively that moral and religious views form the only basis for a belief that same-sex couples are different from opposite-sex couples."

Well what the hell forms the basis for the belief that all men are created equal, or that no man shall be deprived of life, liberty or property without due process of law? Does science show us that people are equal, that all men are brothers? Does economics tell us the perfect usefulness of due process? This pretense that there is law and there is morality and never the twain shall meet, is a piece of transparent sophistry almost comical in its presumption.

What Paul said.

...postmoderns care very little for hypocrisy when they sense it in their adversaries - authenticity is all, for them, meaning the perfect self-coherence of stated convictions and personal behaviour, never mind the incoherence of the demand - and less still for the arguments, rational or otherwise, of those they deem hypocritical.

But it doesn't follow that they would admire us or respect our position were we perfectly authentic. They might despise us all the more.

Although I'm sympathetic to the notion that the contraceptive culture has brought us to this point (I've made the argument myself), I'm inclined to more caution now. In that it legitimizes lust in and out of marriage, and transforms the prospective child from a gift to an inconvenience, contraceptive use certainly plays its part. But it is used to frustrate our natural fecundity, which property does not exist in homosexual parodies. It is a keen irony that the use of contraception points out in very stark fashion the difference between the two kinds of union, not their similarity.

Paul, very, very well-said.

Paul, are you aware of any higher-court precedent which explicitly affirms what Walker speaks as if he can take as given--namely, that _morality_ (not only religion but morality) is prima facie an unconstitutional basis for a law? Or is that original with him?

Interesting points, Bill. The "all or nothing" folks, I think, need to ponder the fact that for some given male-female couple they can imagine circumstances in which the couple really could be married on the view of all parties. (For example, if the couple is divorced and remarried, we can imagine a situation in which the prior spouses died.) This is _literally not possible_ for a male-male or female-female couple. Is it a mere "unprincipled exception" for this absolute metaphysical impossibility to be recognized by law even given the possibility of civil divorce in that same law?

But it is used to frustrate our natural fecundity, which property does not exist in homosexual parodies. It is a keen irony that the use of contraception points out in very stark fashion the difference between the two kinds of union, not their similarity.

True, but contraception did allow the notion of "satisfaction" to come to the fore which is one of the principle arguments for homosexual unions.

The Chicken

"what is the reason for saying this matter in particular (curiously, like most all of those relating to sexual license) cannot be left to the self-government of Californians?"

That parenthetical statement is huge, and there's nothing curious about it: the only freedom this sort of liberalism cares about is, as Tony Esolen said, the freedom of the zipper. Sexual liberty trumps everything -- the expectation that our vote matters, the freedom to disagree without having one's morals or sanity questioned, etc.

As St. Augustine said, "He who controls the passions controls the man." The Left has learned this and is using sexual liberty as a means to grab power: "Sure, we'll let you f##k who you want -- just sign here giving us control of the money and the government..."

Of course it's not as starkly delineated as this, but it's what it boils down to, make no mistake.

Bill:

But it is used to frustrate our natural fecundity, which property does not exist in homosexual parodies. It is a keen irony that the use of contraception points out in very stark fashion the difference between the two kinds of union, not their similarity.

That argument does suggest a moral asymmetry between contraception and sodomy, but I don't think it's the one you have in mind.

The Church has always taught, as a matter of natural law, that voluntarily inducing orgasm without the act's being intrinsically related to procreation is intrinsically wrong. That includes masturbation as well as contraception and sodomy. The difference between contraception and sodomy is that, in the former, the procreative element is removed by intentional human action, whereas in the latter there can be no such element to begin with. For that reason, I'd argue, the former is actually worse than the latter--save when the latter is itself used as a means of avoiding conception, as it once often was and doubtless still is to some extent. So if contraception is OK, there really is no reason why sodomy can't be too--at least in cases where the sexual partners find themselves unable even to experience desire for normal, fecund sex.

Best,
Mike

Not just come to the fore, but completely separate the two -that is separate fecundity and satisfaction. If they can be separated through contraception, what principled basis is there to prevent their separation through gender? If the act can be sought for satisfaction only, which is what contraception allows, then how can homosexual acts be objected to in principle?

I am not agreeing we give in at all, but we do have to recognize that the principled rug has been pulled out from under us to a large extent.

Paul, the "self government of Californians" used to forbid interracial marriage and bar Asian folk from owning property. In your opinion were the courts wrong in Perez and Sei Fuji?

"But the judge in his opinion rules that the very things that give this institution the esteem sufficient to implicate the high principles of the 14th Amendment, are inadmissible in his court: veneration, religion, tradition, prescription."

Yours is a novel reading of the 14th Amendment which was adopted to root out the civilizational rot that resulted from "veneration, religion, tradition, prescription".

Have you read the decision?

"I mean look at this stuff: 'The evidence shows conclusively that moral and religious views form the only basis for a belief that same-sex couples are different from opposite-sex couples.'"

"Only" is the operative word here. The origin(s) of a given belief are irrelevant to its presence in the secular law. Again, if you all would read the decision you would see that the proponents of prop. 8 failed to go beyond mere moral and religious views. Any moral position that aspires to the status of law needs more that a deeply held feeling or a passage in some ancient book purporting to be the words of some deity. Mere inspiration by a Spirit or purported dictation by Allah doesn't cut it. I can provide a rational basis for laws against murder and requiring one to fasten ones seat belt. You can't provide a rational basis for a state interest in denying a class of folks equal access to the law. Again, the defendants couldn't make their case - no facts.

And Paul, if you don't require things like facts and a rational basis, things like below wind up in the law.

"Bill:

But it is used to frustrate our natural fecundity, which property does not exist in homosexual parodies. It is a keen irony that the use of contraception points out in very stark fashion the difference between the two kinds of union, not their similarity.

That argument does suggest a moral asymmetry between contraception and sodomy, but I don't think it's the one you have in mind.

The Church has always taught, as a matter of natural law, that voluntarily inducing orgasm without the act's being intrinsically related to procreation is intrinsically wrong. That includes masturbation as well as contraception and sodomy. The difference between contraception and sodomy is that, in the former, the procreative element is removed by intentional human action, whereas in the latter there can be no such element to begin with. For that reason, I'd argue, the former is actually worse than the latter--save when the latter is itself used as a means of avoiding conception, as it once often was and doubtless still is to some extent. So if contraception is OK, there really is no reason why sodomy can't be too--at least in cases where the sexual partners find themselves unable even to experience desire for normal, fecund sex.

Best,
Mike"

Yours is a novel reading of the 14th Amendment which was adopted to root out the civilizational rot that resulted from "veneration, religion, tradition, prescription".

What, you mean the rot that religion was the primary force against slavery???

"'The evidence shows conclusively that moral and religious views form the only basis for a belief that same-sex couples are different from opposite-sex couples.'"

Good grief is the man blind? This argument wouldn't make it past a five-year old. Tell him to take an anatomy course.

Besides, moral and religious views do matter, in any case. They can form relevant arguments. Who the heck is he, who the heck is he (yes, I repeated that), to pooh-pooh, them? It is up to the judge to explain why they aren't relevant, not just to dismiss them out of hand. The people of California are supporting the Natural Law and using the State Constitution to amplify it. If the judge disagrees with the Natural Law, then, when he starts walking on water, I will believe he has a right to make an announcement contrary to the intent of the Proposition. The people have no responsibility to defend the matter beyond common sense. The judge, if he wants to overturn the Proposition has the responsibility to give an extraordinary argument why common sense is not enough to establish the claim of the people. He has not done so. His ruling is just ipse dixit, not the people's. He has things backwards. Satisfaction is not an a priori reason for a union, otherwise, drug use would be legal.

The Catechism of the Catholic Church has this to say about such nonsense:

1902 Authority does not derive its moral legitimacy from itself. It must not behave in a despotic manner, but must act for the common good as a "moral force based on freedom and a sense of responsibility":21

A human law has the character of law to the extent that it accords with right reason, and thus derives from the eternal law. Insofar as it falls short of right reason it is said to be an unjust law, and thus has not so much the nature of law as of a kind of violence.22

1903 Authority is exercised legitimately only when it seeks the common good of the group concerned and if it employs morally licit means to attain it. If rulers were to enact unjust laws or take measures contrary to the moral order, such arrangements would not be binding in conscience. In such a case, "authority breaks down completely and results in shameful abuse."23

In my opinion, the judge, by his decision, has committed an act of violence against the truth and has abused his authority.

Given the simplistic nature of his arguments, if I were sitting on this man's committee and heard this argument, I would flunk him on the spot.

The 14th amendment does NOT apply in this case because homosexual unions can never be a privilege in a rightly-ordered society, where rightly-ordered means any society that wants to survive past two generations. Such unions may be tolerated for a time as an evil, but they cannot be given privilege through any act of correct reasoning. This is unlike the case of mixed marriages, where such marriages have a metaphysical integrity as marriage. They are contained within the privilege of the metaphysicals of marriage in a way that homosexual unions are not.

The Chicken

Al,

The comment of mine you quoted was meant as part of an argument, made by one Catholic to another, that it's inconsistent to find contraception morally acceptable while finding sodomy morally unacceptable. In that comment, I made no argument that contraception is morally unacceptable. I have done that elsewhere; here, I merely cited the Catholic teaching without arguing for it.

Nonetheless, I don't think one need offer any such argument as a basis for opposing same-sex marriage politically. The argument I prefer to make against SSM is that society has little to gain and much to lose by privileging sexual relationships that bear no intrinsic connection with procreation. Lots of conservatives have made such an argument. But homosexualists don't want to conduct debate in such terms. They make a moral argument themselves, i.e. that it's immoral, because unfair, to deny homosexual partnerships a status accorded to traditional marriage. But that argument presupposes that "marriage" bears no intrinsic connection with procreation, which is precisely what's at issue philosophically. So the homosexualists' "moral" argument begs the question.

Now in the way I've already stated, one can adopt the "traditional" side of the marriage debate without accepting any particular religious authority. Yet as Ed Feser shows in his own post, another problem with the liberal position is that it seeks to impose, by force of law, a metaphysics and a morality that are by no mean self-evident to many people. Thus it does the very same thing you're accusing us of wanting to do for our own "religious" reasons.

Best,
Mike

al (and Keith),

I know you claim to be enamored with the gay judge's decision, but lot of smart folks have followed the trial from the beginning, worried about the way the judge conducted the trial, and have now read through his ridiculous decision, including all his "facts":

http://article.nationalreview.com/438980/judge-walkers-phony-facts/the-editors

The big question right now is what the heck is Anthony Kennedy thinking about all of this?

Yours is a novel reading of the 14th Amendment which was adopted to root out the civilizational rot that resulted from "veneration, religion, tradition, prescription".

You really outdo yourself sometimes, Al. If your view is that the 14th Amendment has no moral content, then please be a man and say it, rather than adverting to irrelevancies like an amateur sophist.

Again, despite your disingenuousness or denseness on this point, the Amendment in question draws deeply on a moral tradition of human thought to assert that it is in the nature of man that he shall not be deprived of life, liberty or property without due process of law. That the overthrow of slavery was a moral cause, and thus the solemn constitutional legislation enacted to codify that overthrow was an instance of dread "morals legislation," is the sort of truth only postmodern liberalism can obscure from a man in possession of his senses.

Finally, do you really think this haughty pretense that the judge in this case has written some grand new thesis, never before imagined, formulated, or set down in argument, is going to intimidate anyone? What claptrap.

We've all been over this ground many times, Al. These arguments are anything but new. The Supreme Judicial Court in Massachusetts gave us its own rendering -- what? five or six years ago.

Cut out the buffoonish bluster. This is ridiculous.

AL: Have you read the decision?

The Judge: 19. Marriage in the United States has always been a civil matter.

By his further use, it becomes clear that what he means is that it is a matter owned, controlled, created, and governed by the state. But of course he nowhere argues this, he merely asserts the premise and then assumes the larger meaning that he hasn't the gall to state explicitly.

Oh, let's look at this nice twisting of words, please:

33. Eliminating gender and race restrictions in marriage has not
deprived the institution of marriage of its vitality.
a. PX0707 at RFA No 13: Proponents admit that eliminating the doctrine of coverture has not deprived marriage of its vitality and importance as a social institution;
b. PX0710 at RFA No 13: Attorney General admits that gender-based reforms in civil marriage law have not deprived marriage of its vitality and importance as a social institution;

Ok, proponents meant that eliminating the specific "doctrine" of coverture or other changes have not deprived marriage entirely of its vitality and importance, but they did not mean that this change has not deprived the institution of a measure of its vitality. The social evidence is very, very strong (and admitted by liberal social scientists) that changes in such things as the no-fault divorce law HAS deprived marriage of some of its vitality.

So, the judge basically takes whatever evidence he wants, and equivocates on it to mean whatever he feels his arguments would benefit by, to derive his own little conclusion: he personally doesn't want it to be true that restricting marriage to being between opposite sexes has a useful meaning (for the state), so therefore anybody else who thinks so is being irrational.

The whole idea of levels of scrutiny is based on a tradition that is 72 years old, from a footnote in a Supreme Court opinion called "U.S. v. Carolene Products." In that footnote, no "evidence" or "social science" data is offered to justify this new interpretive scheme. It is, then, to employ Judge Walker's nomenclature, "merely a tradition." So, based on Judge Walker's own analysis of Prop 8, he should drop the levels of scrutiny analysis all together. For it is as groundless as the law he claims he must discard. Either way, Prop 8 remains unscathed, for its justification is no worse than the principle by which it was assessed. Ultimately, then, Judge Walker's opinion is self-refuting, a burlesque of reason, if you will.

The comment of mine you quoted was meant as part of an argument, made by one Catholic to another, that it's inconsistent to find contraception morally acceptable while finding sodomy morally unacceptable.

Apparently you and a couple of other people think I said that contraception is acceptable. Which of course I didn't and have never said in my life. What I reject is a moral parallel between contracepted sex acts and sodomy. Yes, both are intrinsically evil. Is that clear enough? But if this parallel is accepted as perfect (Michael even thinks the former worse than the latter, to which I say rubbish), we're going to lose the argument. Even in contracepted sex acts between husband and wife, the teleology of the act is still embodied in their sexual complementarity, and in the form of the act itself. The contraception serves to disguise one half of the truth of that teleology. In homosexual acts, that teleology doesn't even exist. Husbands and wives who contracept can always drop the disguise if they happen to see the light. The homosexual couple cannot. That's probably why they don't have much use for it.

The difference between contraception and sodomy is that, in the former, the procreative element is removed by intentional human action, whereas in the latter there can be no such element to begin with.

No kidding. Thanks for the instruction.

al (and Keith), I know you claim to be enamored with the gay judge's decision,

Jeff Singer: You somehow know stuff that just ain't so. I haven't even read the whole ruling, much less the transcript of the trial, and don't have a settled view on the judge's decision, much less one I'd state in public. I've mostly just read through the parts about the testimony of Blankenhorn and Miller. But at any rate, I've made no such claim -- and have no view about the judge's orientation, either.

Bill:

I don't think you think contraception is acceptable. I know your views on the subject, which you've expressed before. To construe my argument as claiming otherwise is not just uncharitable but dyspeptic.

Since we rarely agree in general, I'm not surprised we don't agree here about comparing contraception and sodomy. But I got the point of your argument, which I took to be that, in contraception, there's at least a telos to trash, whereas in sodomy there isn't. I agree. That's exactly why I think contraception is worse. Corruptio optimi pessima.

Best,
Mike

Governor Arnold Schwarzenegger "also praised the ruling as an important step toward equality and freedom."

As the top state executive, wasn't it his job to enforce the duly enacted Prop 8 and argue for it? No wonder Prop 8 never got the chance to put its best argument forward.

You might also want to read the opinion as appellate courts are pretty much limited to those facts and those facts are likely to be the basis of the ongoing public discussion.

Not necessarily. There is such a thing as factual and legal suffciency which are esentailly appellate evidentiary challenges. Of course, given that the purported defenders of Prop 8 seemed to be on board with the agenda of the challengers, I doubt much of a defense will be mounted.

And why on earth would public discussion be limited to facts found by some goofball judge?

Of course, given that the purported defenders of Prop 8 seemed to be on board with the agenda of the challengers, I doubt much of a defense will be mounted.

I was struck by the poor quality of some of the defense. How does the identity of the "defendant" get identified in practical terms of presenting briefs and so on, when the defendant is "the state constitution"? One would presume that it is the state, effectively the attorney general's office. With the governator in place, small wonder that the state's defense of its own constitution was a bit limpid.

We need some real powerhouse hitters submitting amicus curae briefs at the appeals level. Assuming that the state does in fact appeal? Huh: could the governor just decide not to appeal, and That's IT? Does anybody else have standing to demand an appeal, like the millions of people who voted for Prop 8?

To construe my argument as claiming otherwise is not just uncharitable but dyspeptic.

I see on second reading that what you must have meant by it's inconsistent to find contraception morally acceptable is that people (other than I) who find contraception morally acceptable cannot consistently oppose sodomy. And, of course, you're wrong. If every married couple in the United States used contraception, they would still have moral ground on which to condemn sodomy and to deny homosexuals the right to marriage.

As to your persistence in believing that contracepted sex is worse than sodomy, I persist in thinking you're off the rails; you've just ceded the case to the Andrew Sullivan wing of the gay marriage juggernaut, who justifies the legitimate good of sodomy precisely on the grounds that so much hetero-sex is sterile.

Contracepted sex isn't wrong. When a husband and wife decide not to have children, whether for a while or forever, they have not done evil. There might be very strong moral and prudential reasons for a husband and wife not to have children, yet still very many good reasons for them to have sex. Procreation is but one of the purposes for sex and, at least judging by its actual function, apparently not the most important or the most common reason. If procreation were the most important reason for married sex, then God seems to have designed it rather badly because it can serve its (allegedly) main purpose only about once per year -- except in Ireland (wink). If such notions are deducible from nature at all, sex seems to fulfill other natural purposes better than procreation, and certainly more often. The divine design in sex seems to emphasize the unitive function of the act rather than the procreative. That is, sex seems designed to serve that purpose most normally and most often. If nature teaches the opposite conclusion on this point -- and it might -- it is not obvious.

But having said that, I also say this: Because both we human beings and nature itself are so deeply and desperately fallen, I wonder if nature in its present form is a good moral guide on this subject and if we, in our current condition, are able to read nature aright. When you make your way with a fallen mind through a fallen world, you are liable to error on all sides. In that light, an appeal to nature seems not very convincing because the nature to which we appeal seems so easily misunderstood. Nature, being fallen, is deeply ambiguous, and our views concerning its supposed moral lessons are thoroughly subject to the noetic effects of sin, my views as well as others'. Because nature itself is fallen, drawing principles of morality from it is a dicey business.

For example, to refer to Wordsworth (whom I consider our language's most astute and profound reader of nature), while I admire both his devotion to nature and his intention to study it with enormous care and precision, he seems to have missed the obvious fact that nature is at least as "red in tooth and claw" as it is glorious and instructive. He is as wrong about nature, in general, as he is about natural children, in particular, whom he said came into the world "trailing clouds of glory behind them." They do not. When I read those words, I want to tell him to look again: That's not glory behind those babies (wink). Augustine seems far more right about the babies than Wordsworth. Wordsworth is wrong because nature is far from clear on these and other issues (which, in part, is why, with Barth, I reject natural theology as worse than hopeless and the analogia entis as "the one invention of antichrist."

"Contracepted sex isn't wrong."

Then virtually the entire Christian Church, both East and West, was wrong up until the 20th century?

Rob,
Your question is overstated and anachronistic. Even if it were not, the fact that an error is old or widespread does not mean it ought to be regarded as truth.

Now make an actual argument from nature, which is what so many here are trying to do, but with only modest effect, at best.

"Your question is overstated and anachronistic."

How so?

"the fact that an error is old or widespread does not mean it ought to be regarded as truth"

Paraphrase: "the fact that a doctrine or practice of the Church is ancient and universal does not mean that I have to accept it."

Contracepted sex isn't wrong.

I've heard that there are a fair number of Protestants who are beginning to question this. I sure hope so. It ought to weigh with you that your tradition's acceptance of it is rather recent.

When a husband and wife decide not to have children, whether for a while or forever, they have not done evil

I'd agee if you'd cut the 'forever.' As to 'for a while,' it is, as usual, the means to the end that concern me.

All this is off-topic anyway. The defenders of Prop 8 need to get back to basics, which is that we first need a male and a female whose complementarity make the sexual argument obvious. All other constructions are modernist chimeras.

Bill's right. We have to argue the obvious. If the genders are truly interchangeable, as Judge Walker argues, why does he distinguish gays from lesbians? The reason why they are distinguishable, it seems to me, is because men are different from women, and men in pairs are different from women in pairs. Even a casual observer to such pairs would not find it difficult to conclude that their differences compliment each other, just as their sexual powers are ordered toward each other with their wholeness only known through consummation. As noted, Judge Walker clearly knows this, for if he didn't he would not be able to tell the difference between gays and lesbians. But by distinguishing them as separate categories he undermines his claim that gender distinctions are no longer relevant.

...he undermines his claim that gender distinctions are no longer relevant.

Good point, Frank. Problem is, I don't think he cares.

"why does he distinguish gays from lesbians"

Probably for the same reason he would distinguish Episcopalians from Methodists.

Episcopalians and Methodists are not distinguished by gender. Really sharp comment.

Ouch. Don't kill the messenger.

then God seems to have designed it rather badly because it can serve its (allegedly) main purpose only about once per year -- except in Ireland (wink). If such notions are deducible from nature at all, sex seems to fulfill other natural purposes better than procreation, and certainly more often....

Now make an actual argument from nature....

Elephants don't contracept. Yet their procreation takes longer than ours.

Elephants.