Friday, July 07, 2006

I ♥ NY again

... though I still the New York Times.

In an explicable outbreak of sanity, modesty and knowledge of their place in their scheme of government (which is NOT to make substantive moral choices), the New York state Supreme Court refused to impose gay marriage on the state. Money quote, from Cheryl Wetzstein of the Washington Times:

"We hold that the New York Constitution does not compel recognition of marriages between members of the same sex," Judge Robert S. Smith said in the 4-2 ruling by the New York State Court of Appeals. "Whether such marriages should be recognized is a question to be addressed by the Legislature."

And ...

"If we were convinced that" state marriage law was "founded on nothing but prejudice ... we would hold it invalid, no matter how long its history," he wrote. But by "limiting marriage to opposite-sex couples, New York is not engaging in sex discrimination."

Reading those quotes practically produced a case of the Pepsi Syndrome on my computer. Since when have judges let legislatures decide moral issues? [/sarcasm] The second quote notes something remarkable -- a judge is acknowledging that the rational basis test is not a license for free-standing moral enquiry on rationality. Or in the words of Gerard Bradley in the matter of Martha Nussbaum's disgraceful lying in the Colorado Amendment 2 case:

Its defenders do not have to show that Finnis (for example) is right and that Nussbaum is wrong. Amendment 2 needs merely a rational basis, not the unequivocal verdict of reason. Its opponents needed to do more than rebut Finnis' account of the classical writers. They needed to show that his account is unreasonable or incompetent-not just debatable or inadequate.

I despise the rational-basis test in US courts because I don't think most people (especially those in some elite clersiy such as the legal profession) have the intellectual humility to realize that others can have rational reasons for disagreeing with them. "If I think X, it's because X is the verdict of reason, so anyone who thinks not-X must be doing so on non-rational grounds" is too common an implicit intellectual template (and actually as common on the natural-law right as the post-modern left) to give anyone the power to invalidate a law on the grounds of "rationality." Unless you actually WANT him (or them) to be dictator(s).

But read the excerpts Judge Smith's opinion, from the International Herald-Tribune. Everything is couched in the conditional (bold-face mine):

First, the Legislature could rationally decide that for the welfare of children, it is more important to promote stability, and to avoid instability, in opposite-sex than in same-sex relationships. ... The Legislature could find that this rationale for marriage does not apply with comparable force to same-sex couples. ... The Legislature could rationally believe that it is better, other things being equal, for children to grow up with both a mother and a father. ... It is obvious that there are exceptions to this general rule ... but the Legislature could find that the general rule will usually hold. ... In sum, there are rational grounds on which the Legislature could choose to restrict marriage to couples of opposite sex. ... A court should not lightly conclude that everyone ... was irrational, ignorant or bigoted. ...

It's hard for me to overstate how joyful this decision makes me, quite apart from the particulars of gay marriage. A court is realizing that a Legislature could make a certain judgment rationally, without taking that as a license to judge the rationality of that judgment itself. That is, this court understood that value judgments are generally not their call. Gay activists have gotten so used to bypassing all public discussion, debate and persuasion with the cry "BIGOT!!!" that they just sputtered ... "how?" The Human Rights campaign called the decision "archaic" and "rooted in ignorance"; Lambda Legal said it denied that homosexuals "are full citizens of this state"; and in spectacular act of presuming one's own conclusion, the ACLU blustered that "there is simply no good reason" not to have gay marriage.

One quote from the dissent by Chief Judge Judith S. Kaye deserves to be unpacked. From the International Herald-Tribune:

The claim that marriage has always had a single and unalterable meaning is a plain distortion of history. In truth, the common understanding of "marriage" has changed dramatically over the centuries.

This is, as far as it goes, true enough. The common understanding of marriage, who can marry, and why, etc., has indeed changed dramatically in nearly every way conceivable:

Age: Mahatma Gandhi was married as a little boy, before puberty, and this was far from unprecedented in the India of his time, and other cultures where parent-arranged marriages were the norm. Puberty has been generally understood as defining the ability to marry (for obvious reasons), while our current society generally discourages marriage until about the late-20s;

Consanguinity: While the principle is pretty near universal, its application has been very far from that, primarily in matters of cousin marriage. That is, in some societies, one can only marry someone of no known blood relationship at all, while in some others (particularly clan societies) a first cousin or a second cousin is possible, and in some cases even preferred (ditto);

Number: Obviously, polygamy is as old as marriage itself and is approvingly practiced to this very day in some societies, and even in our own among some religious sects, sub rosa. Multiple husband to one wife is rare, but not unheard of. And curiously (or not), AFAIK, the same-sex spouses have never been considered married to each other (there is a great Chinese film called "Raise the Red Lantern" about rivalry among wives;

Dissolubility: Again, whatever Our Lord may have said about "from the beginning, it was not so" divorce or annulment have been available in some or another form in many socieities and religions; in some others, not very easily; and in others, not at all. The social stigma attached to divorce has varied too, with India going all the way and killing widows on the funeral pyre (a practice called suttee);

Love: Marriage hasn't always been understood in romantic terms, and exclusive "love marriage" is a recent development. Most famously, Aristotle argued that the highest form of friendship (one based on character rather than utility or pleasure) was between equals, and thus not possible between men and women, or other superior-inferior groups. Greek men still married because they understood biology, but erotic love was generally thought to be same-sex. Socrates married Xanthippe, but still had his eyes captured by Lysis, Phaedrus and Alcibiades. And there was also Sappho of Lesbos (and yes, that's the derivation);

Dowry/Property: Today's custom that the father of the bride pays for the wedding is a residue of this practice, a way of providing for the bride and an assurance that she came from a good family. Otherwise, it's not generally practiced today in the West, but still is common in India. The reverse practice, called "bride price," is commoner in traditional African and American Indian societies -- it began as a form of the groom showing respect to the bride's father and showing his ability to be a good provider. (Feminists whine about both practices, which just shows how irrational they are.) And in Japan, marriage customs include both practices (sorta) -- the two families exchange a series of symbolic gifts. In our society, not until capitalism gained steam (about the time of Regency England) did marrying for property begin to be considered disgraceful gold-digging (Jane Austen sat on the cusp of the two eras, and this tension is the source of much of her drama);

Matchmaking: Again, our current practice -- the free choice of two autonomous parties -- is quite a recent development. The Church teaching has always been that the bride and groom marry one another, but family influence has waxed and waned considerably. Now, we believe the family has no real input, while at other times, even in our own culture, the family held at least a veto (ditto what I said above about Jane Austen). In other societies, marriages have been arranged outright -- sometimes with the children having a right to refuse, other times not;

Virginity: Generally, knowing another man has "spoiled" a woman (Jane Austen again -- Lydia and Mr. Wickham), but today, we don't think it does. And we consider it suspiciously overpious (if not downright eccentric) for a man to have had no experience before his wedding night.

That was longer than I intended ... but what I'm demonstrating is that I am under no illusions of the kind about which the dissenting New York judge thinks she needs to disabuse the likes of me. That one model of marriage has prevailed in human civilizations, or in our own throughout time, is not true. Correct. In many, many details -- including ones that we now consider (in a loose sense) "sacred" -- marriage is historically conditioned.

And yet ... something still strikes me. Despite all these myriad ways that marriage has differed throughout the 5,000 years of human civilization (I suspect I haven't scratched the surface; I am not an anthropologist), the one notable way it has NEVER differed is the centrality of the male-female union. As I noted above, even in plural marriages, the multiple wives were not married to each other, free to worship Sappho (sometimes they were friends; othertimes rivals; and probably in a few cases, Sappho came upon them). But unless the good judge's point is that any change in the understanding of an institution means the institution has no meaning per se, the fact that an institution has changed in every conceivable way BUT ONE seems to rather suggest that this one thing (male-female) constitutes marriage's essence (this is the classic Aristotelian way of defining, in fact; the unique feature constitutes the essence, distinguishing it from the "accidents," such as [in this case] dowry, number, age, love, etc.). The alternative is simply to say that marriage has no meaning at all, in which case, why not marry an animal, your children, etc.

Nor is this understanding of marriage as essentially male-female the result of ignorance or homophobia. Marriage has been understood as male-female in essence, even in societies with what-we-think-of as a more "tolerant" view of homosexuality. As I mentioned above, pederasty was a common and widely-admired practice among the Greeks [and Romans, to a lesser extent]. In many other primitive societies, rites of passage and periods of testing have involved same-sex sex acts and/or some form of same-sex love (sponsorship, adoption, brotherhood). What is completely unknown in human history (until historically speaking, five minutes ago) is a marriage parallel -- an exclusionary same-sex union that followed the same or parallel customs as opposite-sex unions. (And yes, I know of John Boswell and I also know that his books' account of social approval and gay marriage are incompetent fantasies based on tendentious eisegesis.)

Marriage *means* a man and a woman, so there is no such thing as a homosexual "marriage" (though there is same-sex "love" and same-sex sex acts). It's really that simple.

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