“Gay” “Marrage”– The Missing Constitutional Argument

By Ildar Sagdejev (Specious) (Own work) [GFDL or CC-BY-SA-3.0-2.5-2.0-1.0], via Wikimedia Commons

The whole “Gay” “Marriage” argument –on both sides– is frequently flawed from it’s very premise and base assumptions. These current legal novelties are troubling for the fabric of our nation.  I’m talking about the principles that found the country itself. These principles are important, and are the real reason why we can’t go changing things like this willy-nilly.

There’s a reason why juvenile and family court have been going insane since divorce became normalized. That’s the little signals we should have seen that messing with the building blocks of our country– the principles of our nation. This causes a good deal of chaos, even here in the real world. Ideas matter, and decisions have consequences. Abandoning those principles leads to tyranny and chaos.

There’s a reason why all civilized man tended to define marriage in the same way.  And, I’ll give you a hint. It pre-dates Christ by a good long while.  

Our laws are partially based on Roman law, altered by Enlightenment ideas about individual sovereignty.  But the definition of a person is at the deepest roots of the thing, and when we say that the family is the building block of civilization– there’s a reason why every civilized society with lasting peace has defined these units the same way– the binary, hetrosexual family.

The issue is that the proofs  of our human rights are built like a set of Lego. These stack in tightly fitting way to build our Rights from a core of Personhood.  If you don’t believe in God, then Natural Law is the only basis for the definition of a Person that relies on both Science and Reason. It happens to be compatible with religion too– at least Catholic Christian religion, but I digress.

We have to look at the argument from this way– because the basis of rights we once enjoyed is that fragile definition of Personhood. That’s why the “We The People” preamble is important.  It defines terms both powerful and poetic– but are based in reality.

Let’s start from the other side, first.

The gay rights movement is based on a set of assumptions unsupported by Constitutional reasoning. Their assertion — at least for legal treatments– necessitates defining persons by what they do. To be precise, they define themselves legally by what they prefer in the bedroom. Because all other pieces in this complex picture are only implied, they can easily be ignored or dropped entirely within the paradigm of one set of laws or another.  

This is important, because precedent is how law is codified in this country. If you have done it a certain way before, you can do it again. Every novelty opens a whole new set of ways to divide and treat various groups of people differently.  Do this and we diverge from what is reasonable and sane. The point of the Constitution –derived from the founding documents– is to treat everybody the same under the law because are all people are protected.  If different people are protected in different ways… then all sorts of future malfeasance can be justified based on what came before. Some animals are more equal than others.

If you define a person by an act, they are no longer a full person– because only certain laws apply based on various characteristics.  If you alter the nature of personhood by personal foibles, sexual desire and/or choices — you have a basis, or a precedent, for other laws to define people by these narrow terms.  To make matters worse, *only* if you define your WHOLE personhood by a particular set of acts, can you argue the traditional definition of marriage is discrimination.

Also, even before DOMA was kicked to the curb, gay people could go to any church that accepts —  by then most did — and have a ceremony, get a contract, adopt children, have visitation rights, share finances, get tax breaks, get insurance, throw awesome parties and everything they could want– save the adulation of every human person.

IF people by definition were something other than who they get a tingle for, then it isn’t discrimination– but a definition. This is why sexual “identity” politics is so potent. Because it reduces a person to a set of acts to leverage government power as a new category of being. Ironically, homosexuals and others have to objectify themselves to win the argument. Once you become, that isdefine yourself as the embodiment of an act, you risk being defined that way to your detriment.

It is arguments like these that win court cases. This should be disturbing– especially to people who have been marginalized by history.  That’s why logic is important for EVERYONE– as a citizen of the United States.  We should be teaching it in elementary school, not relegating it to the ghetto of electives in High School– and even then, only for wealthy schools. It is a base requirement for American Citizenship.  It’s not just about being hoodwinked, it’s about knowing what’s really important and why the Constitution is the way it is. That’s why Personhood, and the Right to Life is in the Preamble of the Constitution. Because that’s how we define a protected class in this country. People. If it’s something else, then all people are no longer protected.

Further Irony– this objectification is how hate actually works. That is, to think of someone as a thing instead of a person. Logic 101.  It goes like this– if someone is the embodiment of an act, they aren’t really a person. That’s how the progroms were justified. Certain classes and races were considered subhuman, so it was okay morally speaking to treat them badly.  The trouble is, this sort of thinking is really handy to justify any bad behavior.   But the new fashion is to change laws every time you change your mind. Doesn’t anybody see the problem in this? Clear and present danger, as far as I’m concerned.  

Logic like this has already been used to put forward special laws to “protect” homosexual persons extra special.  Beating people up, harassing them, calling them ugly names, are all illegal already on their own merits. Doing that to anyone is wrong.  Why wouldn’t everyone be protected? If they aren’t, something is wrong. That something needs to be addressed.

If laws already on the books aren’t being enforced– the solution to the  problem is NOT to make more laws. It’s to address a failure of Justice, not make yet more laws that can be ignored or not.  I mean, if the government really doesn’t want to enforce all it’s laws– who says that more numerous laws are going to be enforced better?  Ultimately, laws are just unmagical pieces of paper. If the machine ignores it– you’ve got nothing done, except given someone an excuse to use yet more verbiage against you when your chips are down.

That is why slavery weakened the Constitution in the first place.   First, because it defined some people as property worth 3/5th of a vote– which leads to questions about personhood. Second, removing it opened the door to changing the document for any other purpose.  Because the clause of slavery defined some people as something other than persons, and left precedent open to do so for other people– even when the original intent was for everyone to be people, and the concept of a person to be sacrosanct. 

Defining some people as different blurs the line about what a Person is. There is another attack on this concept, too.  Abortion. Right to Life means fetuses… because if a fetus isn’t a person, WHAT IS?! Once some people become things– for no matter what purpose– you have no justification for YOUR LIFE in front of the law. Congratulations. There’s an open door to tyranny.

Then there’s this funny other fact. Persons are defined by biological processes, which are represented in the law by… marriage.  This is where children’s rights come from. If marriage (in the law) isn’t for procreation, then the definition of a person as a sovereign entity falls into question.

Heck, divorce weakens the definition of persons and the protection of life. Why do you think  abortion was unthinkable until divorce was normalized?  It’s not hard. Once People become less important than convenience– some people can start moving other people around like commodities. Commodity is a fancy economic term for things that are valuable. A shallow study of history will show how frightfully easy this is for humans to do.

Don’t have the delightful person in your life you want?  Go ahead and create a thousand potential humans and destroy all of them except the one you choose. Here’s the awesome thing they never tell you when you spend the $20,000 to pay for this travesty– the likelihood of success is about equivalent to a fertile couple practicing the rhythm method get pregnant. That is, it is  %75-80 effective.

Why is this so shocking?  Because the rhythm method has been *discredited* by all sane and sensible people for fertile couples trying for either contraception and getting pregnant. Why? Well, look at the numbers, we are told. We do, and what do we get?

I guess paying that extra cash makes IVF a better deal. A cheap to free method for  equally desired things isn’t worth any respect or care.  Yes, I know that the rhythm method doesn’t work for infertile couples. I know the hurt and pain that comes from not having a child. Really. I get it. But killing 1000 fetuses or more to get that one special baby, is savage act up there with Lady Bovary bathing in the blood of virgins. Those peasants were her property in the light of the laws of the time.   Is it any better that she relied on young peasants that no one would miss?  She didn’t get into trouble until she ran out of her own and had to go shopping around.

Do *you* have that special what’s-it that makes a chosen baby worthy of life in the eyes of the law? The older I get, the less certain I am that I do.  This is especially troubling when the government runs healthcare.  It’s all connected, and coming soon to a death panel near you. All for a set of words on a piece of paper that may or may not be ignored.  The unseen issue is that the Constitution itself went from being “The Constitution” to “Another Piece of Paper we can Change” a long time ago. “A living document” is just a fancy word for just another piece of paper.

The amazing thing about Principles is that they are universal and last for all time. The new fashion isn’t going to render them obsolete, because they are based on the deepest truths of mankind.  They apply to everyone for all places and all times. But over the course of 100 or so years, maybe more, we have forgotten why principles are important, how to protect them, and that our freedoms rely on these very things.

What we are seeing now is the belated result. It’s not going to turn out well for anyone. Nope, not for gays, either.


5 thoughts on ““Gay” “Marrage”– The Missing Constitutional Argument

  1. Perhaps you meant to say “Countess Báthory”, rather than “Lady Bovary”? Madame Bovary was a fictional character who met a tragic end.

    I think the biggest disagreement I have with many of your well-written arguments is the implication that changing the definition of marriage is a recent phenomenon. It isn’t. You mentioned Roman law. Under some periods of Roman law you could marry multiple persons, including ones of your own gender, children, or even your horse if you could buy Senatorial license. Roman Catholic priests could marry for a millenium, then they couldn’t, then after the Reformation clerics could marry again. Now they both can AND can’t marry. A married Anglican priest can convert to being a Catholic priest and remain married.

    Tribal law has often allowed polygamy, even promoted and encouraged it. Cultures have risen and fallen, and all the allowances on marriage between different colors or classes or ages or numbers of humans involved has gone round and round in cycles, depending on who’s in charge at the time. Right now this nation is a Republic, the state gets the final say on what marriage is, and religions get to add their opinion after that, which is fitting since non-religious people are allowed to marry. It ultimately is not defined based on any act or behavior either. It’s a legal contract combining material resources and / or specifying fiduciary duties. Married people in the U.S. are currently under no legal obligation to have sex of any kind, unlike the nobles of our European past who married for political alliance.

    Many of the problems you indicate are still logical and believable. I just couldn’t agree on the causes as you laid them out.

    1. Thank you for your polite, well thought out reply. I rarely get sensible disagreement in this topic. I should have been as careful with my references as I was with my explanations. Thanks for the correction.

      I was talking about the Roman Republic. You are talking about the Roman Empire. Different times and different mores. Cato would not agree with your definitions. There’s a reason why the Empire fell.

      Please keep in mind, I never said that married people were under *obligation* to have children. What I said, was that marriage was the legal source of children– that is, young people inherit their sovereignty and citizenship from their biological parents. That’s a different thing. It is also why it is important that citizens are born here, or must naturalise. Individual sovereignty has nothing to do with European or crowned heads from anywhere else. It’s about where your rights come from, that is, from being born. Using the biological model is scientific, and based in reality.The Constitution really says that our rights come from God, but you can see that as a metaphor. Sorta like when your insurance pays for “an act of God.”

      Our ideas about rights and definitions are so confused that we assume that causes equal demands. You cannot deny that in nature, babies come from heterosexual couples breeding. It is only in our enlightened time that we can argue that the sky is pink, because we have sunsets in the evening.

      1. Thanks for your reply as well. It’s pretty simple to deny that, given current medical technology and human innovation, breeding only occurs between heterosexuals. IVF happens between any sperm and egg, outside the body, and millions of children are born to LGBT people in cover marriages, or through surrogates.

        Human ingenuity, invention, and creativity in the expression of intent are part of the nature of our particular species. And we aren’t unique among animals when we construct families by choice, adopting and raising non-genetically related children.

      2. We should derive standards from somewhere. We have to base it on SOMETHING. If we don’t, then the concept of person is purely theoretical, and our rights are based out of empty air.

        We should use that extreme creativity to come up with a new way to justify our sovereignty in front of a government who will cheerfully use sophistry in the name of science to get whatever is desired to pass- and no one says boo when hordes of non-persons are slaughtered in the name of life on demand.

        Once again, the sky is pink because we have sunsets in the evening.

      3. But here’s the problem. Marriage isn’t a contract. It’s not a negotiation for sex and services. We already have words for that in English. Marriage is a covenant– a trading of lives and souls– for the life of the participants. If you disagree, than what you are talking about isn’t marriage. Divorce, in reality, is impossible. Today’s so-called marriage is worth less– and easier to break– than a cell phone contract. That is why I get married in a church, and mean what I say when I say “’till death do us part.”

        Only annulments are possible, which is the ruling that it was never a true marriage in the first place. The madness going on in the courts today do more than prove my point.

        About children: it is not humane to swap little people like gaming pieces. The foster care system is a dismal failure. Not every bio parent is the best parent, and adoption is a good thing, but you can’t just up and trade your kids out with various partners and expect things to go swimmingly. The law used to reflect that, and thanks to innovations that is no longer the case and children and the courts are more disrupted than ever. About surrogacy: if I can sell my gametes, why can’t I sell my kidney? About IVF: you don’t slaughter thousands of potential people to choose that one precious snowflake who happens to be a human being. Why is that one valuable, and the others trash? If the choice is arbitrary, what does that say about the value of human life? Sure, Mengele was creative– but what did he create? Is A Brave New World your beloved future destination? The culture is using it like a playbook instead of a cautionary tale. What will come of this will not be civilization, but the all familiar and human state of tyranny and chaos. Without a cogent legal universe, laws are arbitrary and justice is non existent, no matter how politically correct the language.

        And if you think that everything our culture is based on is BUNK, why not come up with a viable alternative *before* destroying what is there? Sell me on it’s merits rather than fuzzy feel good persuasion. Sure, it’s “compassionate” but what is it based on? PROVE to me it’s scientific. Just because we can do something doesn’t mean we should.

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