This very appalling book

Jennifer Roback Morse | Wednesday, 1 September 2010

Red Families v. Blue Families
Two academics stoke the culture wars by claiming that blue states have the correct recipe for making families.

Red Families v. Blue Families: Legal Polarization and the Creation of Culture | By Naomi Cahn and June Carbone | Oxford University Press, USA (2010) | Hardcover: 304 pages | $29.95
ISBN: 0195372174

This widely-discussed book seems to be about the differences between red states and blue states, between socially conservative and socially liberal America. In fact, it is about the differences between college educated women and everyone else. You could say this book is the “soft power” version of class warfare. The rich are deliberately making war on the poor, not to expropriate their material resources, but to establish social hegemony. They want complete social approval and legal support for a lifestyle from which they benefit and which harms others.

I was supposed to have written this review long ago. The time-consuming nature of unpacking the illogic and obfuscation in this supposedly scientific tract is not the only reasons for the delay. This book made me so angry I could barely read it.

The essence of the Cahn and Carbone’s version of class difference, which they wrongly attribute to “red states” and “blue states”, is delayed age at first marriage. Later marriage allows women to complete their education and enter into high-income, high-status jobs before beginning families. These high status women are likely to get married and stay married, which further enhances the family’s financial wealth and their children’s life-chances.

Cahn and Carbone, both academics specializing in aspects of family law, leave no doubt that they approve of this “blue state script”. If their only point were to encourage later marriage and childbearing, their book would be unobjectionable. They could join the legions of abstinence educators, religious leaders, school teachers and parents who have been trying to convey that message to the young.

What is objectionable is that their data leaves no doubt that it is not “maturity” or greater self-command that makes the later marriages of the well-educated possible. The elites rely on contraception, backed up by the unapologetic use of abortion, to establish their high-status late-marriage life-styles.

Cahn and Carbone plainly disapprove of “red state” advocates of traditional morality, who are more concerned with marriage than age per se as the prerequisite for childbearing. “Rather than ground family morality in investment in higher education and disciplined childbearing, these advocates continue to celebrate the unity of sex, marriage and reproduction. The reward in this system, particularly for those who may never reach the enhanced status that comes with dual college-educated earners, is family life itself.”

As a highly educated woman who nonetheless “celebrates the unity of sex, marriage and reproduction” I found passages like these hard to read. Carbone and Cahn are implicitly accusing us of opposing “higher education” and “disciplined childbearing”. In fact, there is nothing “disciplined” about the child-bearing of the upper classes. They are simply willing to use abortion to kill off the babies that arrive too early for the script. Contraception, not discipline, allows them to be sexually active and still postpone marriage.

And we do not oppose higher education, as they seem to imply. We simply recognize what Cahn and Carbone themselves recognize in the above quotation: not everyone has the aptitude or inclination to go to graduate school, and absolutely no public policy will change this basic fact. They know that the sexual revolution isn’t working for the lower socio-economic classes, yet their book drips with condescension and contempt for those who resist its continual march through society.

Cahn and Carbone direct their fire at advocates of abstinence education and parental notification for abortion. They do not seem to realize that the early sexualization of the young and the decline in parental authority are a large part of the problem. The combination of Supreme Court decisions and federal promotion of contraception education amounts to a complete government take-over of sexual culture. Against this and the social disorganization of the lower classes, abstinence education and parental notification are, admittedly, impotent weapons. Advocates of an organic holistic view of sex, marriage and reproduction have few weapons remaining in their armory. The federal government picked a fight with the traditional sexual culture and forced us to bring knives to their gunfight.

But Cahn and Carbone turn a blind eye to all this, maintaining that abstinence education and parental notification for abortion are to blame for the problems of the underclass. If only they had more contraception and more abortions, these unfortunate people would postpone marriage, go to law school and be just like “us”.

Let me add a few facts that they overlook. First, over half of women who come for an abortion say that they were using contraception during the month they conceived. Second, nearly half of all women who come for an abortion report that they have already had at least one previous abortion. Since they have obviously been to an abortion clinic before, someone could have told them anything they needed to know about contraception.

The most logical conclusion to draw from these facts is that we have probably gone as far as we can go down the road of handing out birth control. We are trying to use a technological solution to what is plainly a moral problem. Cahn and Carbone are simply illogical to suggest that “changing the subject” from abortion to contraception has even a remote chance of being helpful.
But really, the most appalling thing about this very appalling book is the insularity of the authors. Cahn and Carbone simply have no clue what the actual lives of real people look like. I kept asking myself, “Have they ever met an HVAC repairman? Do they know any home-schooling mothers of eight or nine? Have they ever encountered a grandmother with full-time childcare responsibilities, because her daughter is preoccupied with her newest boyfriend? Do they have any idea that women have babies for all kinds of reasons that contraception and government policy will never touch?”

I am writing this in the Tulsa Oklahoma Airport, after helping my son set up his first apartment to go to welding school, in this reddest of red states. During my trip, I had a chat with the cashier at Wal-Mart who told me her boyfriend makes good money as a welder. “But he travels from job to job. It is hard on our relationship. We live together. I don’t have to pay for nothing, he pays all the bills. But he don’t have nothing either. He spends all the money on fancy TV’s and stuff.” I said to her, “You all need to get married. You can help him manage his money and save some of it. You’d both be way ahead.” I’m thinking about the statistics: married men earn more, save more, and spend more on others and less on themselves. She said, with a grim look on her face, “I’m working on it.” The implication was clear: she had been trying to get him to commit to marriage for some time.

While I was taking a walk, I met a man who was resting from a bike ride. He had one shoe off and was massaging his foot. Turns out, he had a nerve injury and couldn’t put any weight on his foot. He rides the bike every day along the Arkansas River for exercise. I struck up a conversation with him about this devastating injury and his recovery process. I asked him if he lived with anybody. I’m thinking about the statistics: people who live alone (married or not) have a longer recovery process from illnesses and injuries. “No, this happened two months after I got divorced. It was a forced divorce. I didn’t want it. I put up with everything she dished out, because of the kids. But she found herself a rich old guy.” I’m thinking about more statistics: the vast majority of divorces take place against the wishes of one party, are initiated by women and do not involve any form of domestic violence.

This is the world that the elites have created for the lower classes: a world of loneliness, mutual suspicion and uncertainty. Contraception wouldn’t have helped either of these people. In fact, without contraception, the Wal-Mart checker would almost certainly not be living with the boyfriend who spends everything he earns and won’t commit.

Cahn and Carbone refuse to acknowledge that their preferred policies and lifestyles have greatly diminished the possibilities for a high quality family life for working class people. They have nothing to offer them, and they know it. But educated women still get to have the Leave it to Beaver lifestyle they denigrate in their classrooms and that they have done so much to destroy in the rest of the culture. They just get started at age 35 instead of age 18.

The college educated, who postpone childrearing until the parents achieve a measure of financial self-sufficiency and emotional maturity, have become more likely to marry and less likely to divorce than the rest of the population, with two-parent families that remain intact, replicating the statistics that existed before no-fault divorce, the pill and legalized abortion.

When I encountered this paragraph, I wrote in the margin, “Have these people no shame?” How dare Cahn and Carbone criticize the beleaguered and increasingly marginalized social conservatives who strive to bring back some semblance of structure to the lives of ordinary people? How dare the life-style left wine and dine these authors, and, with a straight face, claim to be “progressives” who care about the fate of the less fortunate?

After reading the entire book, that is still my question. Have they no shame?

Jennifer Roback Morse, Ph.D. is the Founding President of the Ruth Institute, a project of the National Organization for Marriage.

Retrieved September 3, 2010 from http://www.mercatornet.com/articles/view/red_families_v._blue_families/

Two Books

Two important books I am reading. One is Christopher Wolfe's Natural Law Liberalism. Wolfe argues against Rawlsian liberalism, the prevailing form of intellectual contemporary liberalism that draws primarily on Rawls's theory of justice.

Wolfe analyzes the inadequacies of Rawls's theory and argues that liberalism "has to be freed of its insensitivity to the fact of the deep influence of the 'regime'--including liberal democratic political communities--on the formation of people's ideals and character: their thoughts, desires, attitudes." The "tendency of toleration to evolve into forms of skepticism and relativism (at least about the human good) and principled religious indifferentism, and the tendency of equality and freedom to evolve into an egoistic individualism that undermines the family and commitment to human goods beyond consumeristic well-being" (p.4)--all this has to be jettisoned.

Moderated in this way so that when it shapes citizens, as it must, "it does so in ways that are more fully compatible with important intellectual and moral goods: with reason and faith, and with the moral virtues that regulate the passions and promote individual and social well-being" (p.4). For its part,

Natural law, without disturbing its convictions that there is a truth, that human beings can know it, and that their well-being lies in finding and and living in accord with it, has to be so formulated to recognize, in ways that its historical representatives have sometimes failed to do, the intrinsic importance--the necessity--of human freedom and the limits of coercion and law.

Freed from their excesses and formulated correctly, Wolfe suggests, both natural law and liberalism, despite their historical antagonism, can reinforce each other's strengths and avoid their weaknesses.

The other book continues William Brennan's important work of exposing and dissecting the language games we play, the euphemisms, medical metaphors, and the like used to dehumanize the most vulnerable and desensitize us to the inhumane and oppressive way they are treated. In his earlier book Dehumanizing the Vulnerable, Brennan, professor in the School of Social Service at St. Louis University, examines the way language has been abd is used to justify horrendous treatment of women, Jews, Blacks, and unborn babies. His latest book, examines the same phenomenon through the lens of Pope John Paul the Great's teaching about the culture of life. John Paul, as Brennan describes, persistently and brilliantly showed how the distorting semantics of the culture of death dehumanizes those for whose killing--through abortion, embryo-destructive research, euthanasia, and assisted suicide--it apologizes.

Of Mercator and Me

The last two posts were from an Australian site called MercatorNet that describes itself as neither liberal nor conservative, but "dignitarian." I have no connection with its authors but find myself in agreement with every word of its statement of ideals. Here it is:


our ideals

This is what MercatorNet stands for: reframing ethical and policy debates in terms of human dignity, not dollars and cents or political calculation. We place the person at the centre of media debates about popular culture, the family, sexuality, bioethics, religion and law. MercatorNet isn't liberal. It isn't conservative. We don't want to be trapped on one or the other side of the culture wars. If you want a label, try "dignitarian".

How do we define human persons? They are men and women (that's right, nothing in between) who have an intellect to know the truth and a free will. Their bodies express their spirit in a way that makes them unique in the universe. They are not machines, animals, or cost centres, but beings with a transcendent value. They need loving families to flourish. They only thrive in a society whose laws recognise their dignity.

What about God? We believe in God (the editor is a Catholic), but defending human dignity is a task for people of every religion and of none. "What a piece of work is man! How noble in reason! how infinite in faculties! in form and moving, how express and admirable! in action how like an angel! in apprehension, how like a god! the beauty of the world!" -- that's Shakespeare, not the Bible. Religion adds clarity and conviction to the task of defending human dignity. But the arguments advanced in MercatorNet are based on universally accepted moral principles, common sense and evidence, not faith.

We oppose moral relativism, scientism, crass commercialism, utilitarianism, and materialism -- in short, any ism which reduces persons to ciphers and treats them as soulless machines. We delight in dissecting media cliches. We respond with logic and evidence. We do our best to be civil and courteous.

These are MercatorNet's principles. We apply them with flair and a sense of humour. If you like the package, sign up for our regular updates so that you won't miss out on the fun.

Retrieved August 20, 2010 from http://www.mercatornet.com/info/our_ideals/

The Club of Ancient Wrongs: The Mosque Near Ground Zero

Another thoughtful essay from the excellent Australian-based blog devoted to human dignity in the face of the many threats to it, MercatorNet


Michael Cook | Friday, 20 August 2010

Welcome to the Club of Ancient Wrongs
The mosque in Manhattan should be moved further away from Ground Zero, but not because of enmity toward Islam.

With one war in Afghanistan, another in Iraq, a possible war with Iran, and an environmental disaster in the Gulf of Mexico, it seems bizarre that the biggest political issue in the US is whether to build a mosque near Ground Zero, the former site of the Twin Towers in lower Manhattan.

Muslims overseas are puzzled. “The mosque is not an issue for Muslims,” says Abdul Rahman Al-Rashid, a leading Arab journalist based in Dubai, “and they have not heard of it until the shouting became loud between the supporters and the objectors, which is mostly an argument between non-Muslim US citizens!”

First of all, some facts.

Only part of the US$100 million Cordoba Initiative is a mosque which will accommodate about 1,000 for Friday prayers. The rest of it is a community centre with a library, gym, auditorium, restaurant, 9/11 memorial and so on. Second, it is not a “Ground Zero Mosque”. It is a full two blocks away from the place where more than 2,700 people died.

Third, it is not a gathering place for radical Muslims. The Kuwaiti-American imam organising the project, Feisal Abdul Rauf, may have sent mixed messages, but he claims to be promoting dialogue between Americans and Muslims. He has even written a book titled, What's Right with Islam is What's Right with America. Since we have George W. Bush’s word for it that Islam is “a religion of peace”, at least New Yorkers should believe in Mr Rauf’s good intentions.

There are two strands in the commentary defending the proposed Islamic centre.

The first is that Muslims have a right, like other Americans, to build places of worship wherever they like. In the words of President Obama, "Muslims have the same right to practice their religion as anyone else in this country." Rabbi Arthur Waskow, a prominent Jewish leader, says: “it is not only the constitutional right of the peace-committed Muslims of the Cordoba Initiative to build a community center in Lower Manhattan, but they are ethically right and profoundly wise to lift there a beacon.”

The other is that “Demonization of the Muslim religion is what this brouhaha is all about.” It is “as irrational an act of scapegoating as blaming all ethnic Germans for the acts of Nazis,” in the words of one left-wing pundit, Robert Scheer. Even the usually sensible Economist says that “The campaign against the proposed Cordoba centre in New York is unjust and dangerous.”

But the right to free commercial activity and the right to freedom from discrimination and vilification are very blunt instruments for dealing with a “sacred site”. His opponents may be using the controversy as a way to weaken President Obama (when 20 percent of Americans think he is a Muslim) but the source of the opposition is more an inarticulate sense of sacredness than bigotry.

If New Yorkers were really that prejudiced, why is the current Islamic centre in downtown Manhattan located ten blocks away in the basement of a Catholic Church?

Today, in most Western countries, the concept of reverence for the sacred is often dismissed or ridiculed or simply viewed with perplexity. But even a secularised sense of the sacred is a tenuous link to transcendence and an important element in forging a personal and national identity.

To take a non-political example, would Walmart ever build a mall and parking lot in Yellowstone? Will California ever sell off Redwood National Park to timber companies to balance its budget? Such proposals somehow violate places revered for their awe-inspiring beauty. Or if Mr Rauf somehow managed to shift his centre to the battlefield of Gettysburg, would the ensuing protests be due to hatred of Islam or to outrage at the violation of this hallowed ground?

And for Americans Ground Zero has been hallowed by senseless deaths, heroic sacrifice, national humiliation and an outpouring of grief.

It is hard to find words to explain why a plot of ground should be revered for memories like these. That is what poets are for. But part of being human is to be connected to places and spaces and memories. Analysing the conflict in terms of constitutional rights is utterly inadequate. Something more ancient is at work which disappears in sterile political battles over rights.

It is not pandering to prejudice to recognise that America, like other societies with a long and deep history, now has its own taboos which ought to be respected even if they are legally indefensible.

A Pakistani professor Islamic Studies at American University in Washington DC, Akbar Ahmed, understands this. A former ambassador to the US, he has a deep knowledge of both cultures.
"I don't think the Muslim leadership has fully appreciated the impact of 9/11 on America,” he says. “They assume Americans have forgotten 9/11 and even, in a profound way, forgiven 9/11, and that has not happened. The wounds remain largely open. And when wounds are raw, an episode like constructing a house of worship – even one protected by the Constitution, protected by law - becomes like salt in the wounds."

Protectiveness and anger are typical of disputes over sacred sites in the Old World. Perhaps the passions in this controversy mean that America is growing up, or at least growing older. What could be more characteristic of an Old World society than fights over sacred sites?

In newer countries like Australia passions seldom run so high. I used to live in Tasmania where the indigenous people, the Tasmanian Aboriginals, had lived in complete isolation for perhaps 15,000 years. Within two generations after contact with Europeans they had all perished. It is one of the darkest chapters of Australian history, even of world history. Yet there is no fitting memorial to them, just a few wretched plaques and a hiking track named after Truganini, the last of her people.

Ancient cultures have deep feelings. Why is Jerusalem the world’s most volatile city? Because Christians, Jews and Muslims would all die to defend their sacred places. The Babri mosque in Ayodhya was destroyed in 1992 by a mob of 150,000 Hindus who believed that it had been built over the birthplace of their god Rama. Serbia fought a war rather than grant independence to Kosovo partly because the Field of Blackbirds, north of the capital Pristina, is hallowed ground where the Serbs made their last stand against the Ottoman Turks in 1389.

It is easy for unscrupulous politicians to exploit sacred sites for their own political gain, as Slobodan Milosevic did in Kosovo to rally Serbs against separatists, and perhaps Newt Gingrich and Sarah Palin are doing now. But that doesn’t mean that ordinary Americans’ attachment to a sacred site should be dismissed as redneck prejudice. It’s more like the anger and exasperation you might feel if an intruding stranger made a scene at your mother’s wake.

And, to draw on the Australian experience, a sacred site can draw Western and Muslim cultures together. Arguably, Australia’s most sacred site is not on the island continent at all, but in Gallipoli, a Turkish peninsula in the Dardanelles Straits. There in 1915, thousands of Australians and New Zealanders died in a doomed attempt to capture Istanbul. Now it is a place of pilgrimage for both Australians and Turks who remember their forebears’ sacrifice and heroism.

Kemal Ataturk, the founder of modern Turkey and the Turkish commander, later wrote a touching memorial which displays far more magnanimity and sensitivity than anything uttered by American politicians in the past few weeks:

“You are now lying in the soil of a friendly country. Therefore rest in peace. There is no difference between the Johnnies and the Mehmets to us where they lie side by side now here in this country of ours... you, the mothers, who sent their sons from faraway countries wipe away your tears; your sons are now lying in our bosom and are in peace. After having lost their lives on this land. They have become our sons as well.”

Michael Cook is editor of MercatorNet.
Retrieved August 19, 2010 from http://www.mercatornet.com/articles/view/welcome_to_the_club_of_ancient_wrongs/
This article by Michael Cook was originally published on MercatorNet.com under a Creative Commons Licence. If you enjoyed this article, visit MercatorNet.com for more.

The World's Most Dangerous Idea?

Carolyn Moynihan | Friday, 20 August 2010


THE WORLD'S MOST DANGEROUS IDEA
All families are equal
From the halls of academe to the hills of Hollywood the cry of 'family diversity' rings out ever more confidently.

Let’s start with a little warm-up exercise. Here are three people who have made pronouncements on the family: a government advisor on families and parenting; a filmstar; an academic. See if you can correctly match them with the following quotations:

“Twenty-first century American families come in a dazzling array of sizes, shapes, colours, and gender-slash-generational patterns. This reality deserves to be reflected in the literature that children read. Until recently, however, children’s books have privileged a paradigm of homogeneity and heterosexuality.”

“…what is it that defines family? It isn’t necessarily the traditional mother, father, two children and a dog named Spot. Love is love and family is what is around you and who is in your immediate sphere.”

“People are constantly redefining what it means to be a family. What we are seeing is that family shape is changing all the time, the notion of a traditional nuclear family … certainly isn’t the norm now. … What policy-makers must not do is … [try] to reverse the tide of trends by trying to encourage more ‘traditional families’.”

Not very difficult, was it? The new “paradigm” lady is clearly the academic -- Ellen Handler Spitz, Honors College Professor at the University of Maryland. Film star Jennifer Aniston came up with the “what is around you” (including Spot, no doubt) line apropos of her role in the upcoming movie, Switch. And the “what we are seeing” pitch came from the CEO of the UK’s Family and Parenting Institute, Dr Katherine Rake.

From the halls of academe to the hills of Hollywood, from Washington to Westminster and Wellington (the New Zealand seat of government), the cry of “family diversity” rings out ever more confidently and passionately. And the range of family forms grows ever more bizarre. Indeed, if Jennifer Aniston’s idea -- that a family is simply “what” is immediately around you -- takes hold, Spot may soon be named Second Parent in a household where he does more childcare than the absent dad.

Groups of people may call themselves a family if they want to; we are not concerned about private preferences here but about public recognition. When it comes to public support, both moral and material, the family in focus is the one with dependent, minor children. And since children are first and foremost the responsibility of the parents who begot them, the normative family recognised by society should ideally include both parents. This is what we know as the nuclear family.

And it is, by the way, the norm implied in the Universal Declaration of Human Rights, the charter from which our modern sense of human rights and dignity depends. Here is what Article 16 says:

(1) Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.

(2) Marriage shall be entered into only with the free and full consent of the intending spouses.

(3) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

The 1948 Declaration sees this “fundamental group unit of society” as built on marriage -- between a man and a woman. And it is no accident that the weight of research up to present moment has shown that children are more likely to flourish materially and spiritually in this type of family than in any other.

Of course, even 70 years ago this “natural” family could present a varied face: a married couple could be childless or have many children; they could adopt a child; any one of the family could die; parents could separate or divorce; a widowed or divorced custodial parent might continue to raise the children alone; or marry again, introducing a step-parent to the children and forming something analogous to the nuclear family. The extended family (grandparents, uncles and aunts and so on) might play a supportive role.

But amidst this diversity no-one seriously contended that all the resulting households were equal -- that is, equally beneficial to the individual members and to society and therefore equally valuable and desirable. Or if they did so contend, their views carried no weight. (I grew up with a widowed mother and knew that our family lacked a vital member.) That breakthrough had to wait another two to three decades, until the sexual revolution had so thoroughly undermined marriage that there seemed to be no other way to assure the welfare of children but to give social support to whichever adult/s they happened to be with -- and to withhold judgement.

Three decades on, we are further down the slippery slope. The idea that a single mother, a “reconstituted family” formed by two divorced people, an unmarried couple with children, and a married couple raising their own children are all morally equivalent (an idea that has gone much further in Britain and north-western Europe than in the United States, for example) has prepared the ground for a new wave of family diversity.

The new model is built on reproductive technology: couples with children conceived with the help of donor eggs and/or sperm and perhaps carried by a surrogate mother; single women with children acquired by donor insemination; same-sex couples with one or more children who might be: a) the offspring of one of them and an ex-spouse; b) the result of gametes from one partner and a donor, or from two donors, and possibly gestated by a surrogate mother; c) adopted or d) fostered.

And here we confront the real and present danger of the whole family diversity trend, because along with it has grown a radical change of focus from the child to the adult/s, from the child’s wellbeing to the adult’s sense of wellbeing. This is the really dramatic “switch” that Hollywood should be putting on the big screen.

An AP story on sperm donor children this week makes this quite clear. Efforts of adult children to find their anonymous parent are being thwarted not only by individual donors but by the industry that uses them. The American Society for Reproductive Medicine says it encourages parents of donor-conceived offspring to tell their children the truth about their conception but it is opposed to the banning of anonymous donations.

"The bottom line in the U.S. — we've always been big proponents of individual rights in regard to procreation," said Andrea Braverman, who serves on the ASRM's ethics committee. "We've always taken the approach that we get our own choices in terms of how we build and manage our families."

Someone else from the industry puts it even more bluntly:

"It may not be a popular point of view, but when these decisions are made by donor and a parent, the child doesn't have a say," he said. "If the contract is for it to be anonymous, it should remain anonymous, and the child just has to deal with that."

To translate: “Too bad, kids; it’s an adults’ world. Our desires rule. And if our first priority is our own sense of wellbeing, you will just have to muddle through as best you can. One day you too will get the chance to shop for the child of your choice.”

That is why the idea that all families are equal is the most dangerous ever: it shifts the child from its rightful place at the centre of the family to the fringes, and then to the shelf of reproductive choices. I doubt that there is a better way to destroy the human family than that.

Carolyn Moynihan is deputy editor of MercatorNet.
Retrieved August 19, 2010 from http://www.mercatornet.com/articles/view/all_families_are_equal/
This article by Carol Moynihan was originally published on MercatorNet.com under a Creative Commons Licence. If you enjoyed this article, visit MercatorNet.com for more.

Judge Walker, the Language of Law, and the Dictatorship of Relativism

In this essay, Hadley Arkes, a distinguished professor of jurisprudence and philosopher of natural rights and natural law, shows how Judge Walker’s apparently bizarre and eccentric claim that “Relative gender composition aside, same-sex couples are situated identically to opposite-sex couples in terms of their ability to perform the rights and obligations of marriage under California law,” is an expression of

a trend long in the making, a radical recasting of the language and logic of a “moral” judgment. In the relentless march of “relativism,” good and bad, right and wrong, were translated to mean merely the things we “like” or “dislike,” a matter of personal taste

.

Walker, in this view, is not just a biased judge who ignores precedent, evidence, and common sense, as Meese argues in the previous post. Judge Walker expresses a subjectivist and relativist view of morality that itself draws on earlier judicial thinking with a large influence in the courts and the academy. “‘Moral judgments’ come down in the end to irrational beliefs; and they could supply then no justification for the law.” Hence Judge Walker’s decision.

TUESDAY, 17 AUGUST 2010
Judge Walker and the Language of the Law

By Hadley Arkes
Archeologists of the law may one day come upon these words: “Relative gender composition aside, same-sex couples are situated identically to opposite-sex couples in terms of their ability to perform the rights and obligations of marriage under California law.” Now imagine recasting the sentence in this way: “Relative gender composition aside, same-sex couples are situated identically to opposite-sex couples in terms of their ability to beget children.” The first line was written by federal Judge Vaughn Walker in San Francisco as he struck down the constitutional amendment passed by the voters of California, a move to restore the traditional understanding of marriage as a legal relation of a man and a woman. Judge Walker’s argument made sense only if the notion of begetting was conspicuously removed from the very meaning and purpose of marriage. Surely, marriage is not necessary for love: There is genuine love between grandparents and grandchildren, brothers and sisters, and in the nature of things they cannot be lesser loves because they are not attended by penetration and expressed in marriage.

Marriage is not necessary for love, but the law of marriage finds its deep justification as a framework for the begetting and nurturing of children. A commitment confirmed in law is a commitment in the truest sense: it marks the fact that the parents have foregone the freedom to quit their relation to each other and their children as it suits their convenience. And if the purpose is begetting children . . . well, that is the very reason that there are, in nature, men and women. That is thetelos or very purpose contained in the fact that we were made, each of us, as a man or a woman.

That opening line from Judge Walker is one of only a few score that have been zinging around the Internet, soaring well beyond the tethers of reason and propositional logic. Walker’s opinion may not hold up on appeal, but his lines could lighten up our lives for years to come as they make their way into fortune cookies.

There was never actually much doubt about the outcome in Perry v. Schwarzenegger. Judge Walker’s handling of the case revealed a leaning flamboyantly out of the closet. There has been much complaining about the so-called “facts” that Walker was willing to proclaim on the basis merely of opinions offered by so-called “experts.” But the outcome of the case on appeal will not turn on any facts gleaned from the social sciences. That is a long story, best left to another time. What is more striking here is that the resolution of the case was virtually determined by the premise planted in the law by Justice Anthony Kennedy in Romer v. Evans in 1996: The willingness to cast an adverse judgment on the homosexual life can be explained only by an “animus [lacking] a rational relationship to legitimate state interests.” Generations of reflection, running back to the ancients, could be dismissed as one long, thoughtless spasm of irrational “animus.”

With that premise planted, the arguments over Due Process or Equal Protection could be churned out in an instant. Due Process? People were suffering a harm, they were denied a benefit, their liberty to marry was being denied, on grounds that were irrational, and therefore arbitrary. Hence, the denial was unjustified, wrong. Equal Protection? Couples of the same sex were not accorded the same rights to marry as couples composed of men and women. Even if “domestic partners” were given many of the same benefits of marriage, they were treated as morally inferior, not worthy of marriage. They suffered a harm or wounding because they were treated unequally and for no rational reason. Hence, the unequal treatment was unjustified, wrong.

But behind all of this was a trend long in the making, a radical recasting of the language and logic of a “moral” judgment. In the relentless march of “relativism,” good and bad, right and wrong, were translated to mean merely the things we “like” or “dislike,” a matter of personal taste. Justice Hugo Black would famously deride appeals to natural law and moral reasoning by reducing them to subjective beliefs. An argument with strenuous reasoning would be translated to mean that the advocate simply “liked” or “disliked” the policy.

And curiously enough that same translation has come even from conservative and Catholic jurists in our own day who have been suspicious of natural law and the judges who invoke it. With Judge Walker the conversion of terms took this form: “the state cannot have an interest in disadvantaging an unpopular minority group simply because the group is unpopular.” Walker simply rules out the notion that there may have been reasons for turning away from the homosexual life. Homosexuals were simply “disliked,” an aversion without reason. “Moral judgments” come down in the end to irrational beliefs; and they could supply then no justification for the law.

In this way, the wave of relativism inverts language and dissolves any moral ground for the law. What is left then is the bald power of a judge to strike down whatever is enacted. Justice Holmes hoped that “every word of moral significance could be banished from the law altogether,” and Judge Walker stands in the line of his heirs. The result, in this case, is to deprive the people of California of the freedom to deliberate and vote on a matter of moral significance that stands at the very matrix of the laws.

Hadley Arkes is the Ney Professor of Jurisprudence at Amherst College. His most recent book is Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law.

Retrieved August 18, 2010 from http://www.thecatholicthing.org/columns/2010/judge-walker-and-the-language-of-the-law.html

I knew it was bad, but...

Judge Walker's ruling on California's Proposition 8 must be one of the worst ever in the U.S.--not only is it wrong in its decision, it states as findings of fact the judge's own unsupported opinions, and ignores contrary evidence as well as cavalierly dismissing as bigoted the opinions, not only of most people in all or nearly all known times and places over many millennia, but also of the President, Vice President, Secretary of State, most members of Congress and seven million Californians who voted for Prop 8. How bad the ruling is, just as legal reasoning and decision-making, without regard to substance, is brought out well in this article in the Washington Post by Edwin Meese III.

Prop. 8 ruling ignores precedent, evidence and common sense
By Edwin Meese III
Tuesday, August 17, 2010; A15

Even some who support same-sex marriage worry that, in striking down California's voter-approved proposition defining marriage as between one man and one woman, U.S. District Judge Vaughn Walker went too far. They are right -- and not the only ones who should be concerned. Walker's ruling is indefensible as a matter of law wholly apart from its result.

By refusing to acknowledge binding Supreme Court precedent, substantial evidence produced at trial that was contrary to the holding and plain common sense, the ruling exhibits none of the requirements of a traditional decision. This opinion is arbitrary and capricious, and its alarming legal methodology and overtly policy-driven tenor are too extreme to stand.

Regardless of whether one agrees with the result, structurally sound opinions always confront binding legal precedent. Walker's is a clear exception because the U.S. Supreme Court has spoken on whether a state's refusal to authorize same-sex marriage violates the equal protection and due process clauses of the 14th Amendment. In 1972, Baker v. Nelson, a case over whether Minnesota violated the Constitution by issuing marriage licenses only to opposite-sex couples, was unanimously thrown out on the merits, for lack of a substantial federal question. The Supreme Court's action establishes a binding precedent in favor of Proposition 8. But Judge Walker's ruling doesn't mention Baker, much less attempt to distinguish it or accept its findings.

During a trial, litigants from both sides introduce various types of evidence, including witness testimony, documentary evidence and legal opinions that involve "judicial notice" of certain well-known or legally controlling facts. Sound judicial opinions consider the facts and evidence on both sides of an argument, apply them fairly to the dispute at hand and determine which legal cases are on point.

Yet Walker's opinion pretends that the voluminous evidence introduced on the side of Proposition 8 does not exist. It neither acknowledges nor attempts to distinguish the writings of renowned scholars presented at trial in support of Proposition 8, including that of anthropologist Claude Levi-Strauss, history professor Robina Quale and social scientist Kingsley Davis. It ignores the writings of legal giant William Blackstone and philosophers John Locke and Bertrand Russell. It even refused to address the fact that Congress, in the 1996 Defense of Marriage Act, defined marriage as the "legal union between one man and one woman as husband and wife."

Despite ample evidence introduced into the record that only a union of a man and woman can produce offspring (as if that needs proof), Walker's opinion denied the relevance of that biological fact. That difference has been the main reason civilization recognized the uniqueness of marriage as between a man and woman, and why courts have repeatedly relied on that common-sense truth.

Despite voluminous evidence and common sense pointing to the contrary, the judge also declared that opposite sexes were never part of the "historical core of the institution of marriage"; "evidence shows conclusively that moral and religious views form the only basis for a belief that same-sex couples are different than opposite-sex couples"; traditional marriage is an "artifact"; and, also without reference to the monumental evidence to the contrary, that it is beyond "any doubt that parents' genders are irrelevant to children's developmental outcomes."
These assertions appear in the opinion's "findings of fact" section, yet they are not facts. These "findings" derive from arbitrary and capricious non-analysis and are forcefully contradicted by evidence in the court record. No appellate court should allow the ruling to stand.

Having ignored everything courts typically rely on in making sound judgments, Walker concluded that Proposition 8 was enacted "without reason" and demonstrates "a private moral view that same-sex couples are inferior to opposite-sex couples [and are] . . . not as good as opposite-sex couples." Nothing in Proposition 8 supports such conclusions, particularly since California law grants same-sex couples all the benefits and protections that apply in traditional marriage.
People can differ on whether, as a matter of policy, states should allow same-sex marriage. The robust debate on that topic should not be short-circuited by judicial fiat.

Yet, according to the federal district court, Americans such as President Obama, Vice President Biden, Secretary of State Hillary Clinton, the majority of members of Congress and the 7 million Californians who voted for Proposition 8 are all bigots who have "no rational reason" to oppose gay marriage.

Even the usually liberal U.S. Court of Appeals for the 9th Circuit has reservations about immediately implementing Walker's exercise in judicial social engineering. A three-judge panel of the court issued a stay late Monday to prevent California's law from being cast aside before a panel can fully review the matter. It was right to do so. The rule of law demands more careful consideration of this important issue than Walker's decision delivered.

The writer is chairman of the Heritage Foundation's Center for Legal and Judicial Studies. He served as U.S. attorney general from February 1985 to August 1988.

Retrieved August 18, 2010 from http://www.washingtonpost.com/wp-dyn/content/article/2010/08/16/AR2010081604254_pf.html