Vincent J. Curtis
7
Jan 2014
On December 20th, 2013, Judge Robert J. Shelby
issued a ruling that struck down the provision in the Utah State Constitution
which defined marriage. The Utah
constitutional provision which defined a marriage as between a man and a woman
was passed in 2004 by a vote of 66 % to 33 %.
In his 53 page ruling, Judge Shelby ruled that the state’s
definition of marriage in its constitution violated the constitutional rights
of gay and lesbian couples under the Constitution of the United States,
specifically the 14th Amendment and its provision of equal
protection and due process under the law. He found that gay and lesbian couples have a
fundamental right to marry, and that the Utah constitutional definition of
marriage demeaned the dignity of these same-sex couples for no rational reason. He accordingly found the laws
unconstitutional.
He further stated that the state offered no evidence that
opposite-sex marriage would be affected, and that fears and speculations are
insufficient to justify the state’s refusal to dignify the family relationship
of gay and lesbian citizens.
Well!
It is certainly cheeky of Judge Shelby to complain of a lack
of rationality. Given what he found, I
doubt anything I say would be found rational by him. Rational discussion is not possible when the
opposing parties disagree on basic premises. But rationality consists in method
of argument, of reasoning more or less logically from premises to conclusions,
whether the premises are accepted or not.
Permit me to take on Judge Shelby and his opinion even if he would find no
rationality or reason in it.
Before I begin, let me observe that Judge Shelby’s finding
that Utah’s placing of a definition of marriage in its state constitution was
demeaning and placed there for no rational reason means that he claims to know
what is in the mind of Utah’s public at large.
It seems never to have occurred to him that the definition was placed
there for greater certainty and for the instruction of Utah’s state courts and
other officials by Utah’s public at large without any malice intended. It was a statement of Utah’s settled opinion
on the matter, and that was all. The
mind-reading Judge Shelby overturned Utah’s settled opinion. Now I shall tackle Judge Shelby’s ruling on
its merits.
Let me begin with a principle of justice. Justice consists in the treating of equals
equally and unequals unequally in proportion to their inequality. This is the principle of fairness.
Are heterosexuality and homosexuality equal?
They are not, for they are different in kind. Heterosexuality and homosexuality are
undoubtedly different, but they do not differ in degree. Since they are not differing degrees of the
same thing, they must differ in kind.
Since they are different in kind, they cannot be equal; and there is no
basis therefore for attempting to treat them as equals in law. If heterosexuality and homosexuality differed
in degree, then different treatment of them in law would still be justified on
the basis of their differences in degree.
Consequently, there is no basis in Justice for treating
homosexuality as equal to heterosexuality. In fact, Justice requires that they be treated
unequally!
Let us now look at an alleged right to marriage.
Marriage is not an individual right.
In the first place, marriage requires two, not
one, by definition.
Secondly, marriage
does not answer to a fundamental need of an individual, and so there is no
basis in natural law for it to be enshrined as a human right.
A natural need gives rise to a human
right.
Marriage is not on par with a
right to sustenance of life, etc.
Marriage is a convention.
A social convention, first between two people
and then between the couple and society at large.
The existence of the convention between two
people is signified by an act of law or religion.
The convention of marriage is circumscribed by law in many
respects. In the first place, one person
cannot marry another who does not want to be married to the first. One person cannot marry another if one of the
two is already married to a third. There
are the laws of consanguinity which forbid a widowed father from marrying his
daughter, brother from marrying sister, mother and son, etc. There are all kinds of accepted laws which
control who can marry whom. It does not
seem to be beyond the bounds of reason for law to define that a marriage is a
convention between a man and a woman, and to say that is such convention is
lawful subject to these other limitations.
There is nothing in law which prevents a gay man from marrying a gay
woman, subject to these other provisions, and so no individual right is impaired by defining marriage as a convention
between a man and a woman. It is not
clear from Judge Shelby’s ruling if a marriage between two gay brothers should
be lawful or not, since the laws of consanguinity are not relevant to that
case. Or, for that matter, between a gay
brother and a lesbian sister. (Judge
Shelby’s opinion offers no principled reason for objection to these latter
kinds of relationships being recognized as lawful marriages.)
In summary, there is no individual right to marriage, nor can there be. Judge Shelby discovered an individual right
to marriage where one cannot exist in order for him to find something that
would be covered by the 14th Amendment, and its provision for the
right to equal protection of the law and due process under the law.
The applicable provision of the 14th Amendment
reads as follows:
“No State shall
make or enforce any law which shall abridge the privileges or immunities of
citizens of the United States; nor shall any State deprive any person of life,
liberty, or property, without due process of law; nor deny to any person within
its jurisdiction the equal protection of the laws.”
Last year, the
Defense of Marriage Act and California’s Proposition 8 were challenged before
the Supreme Court of the United States, and both were struck down in a majority
opinion partly on the basis of this part of the 14th Amendment. A noted constitutional textualist, Justice
Antonin Scalia, asked Counsel Ted Olsen in that case when did sexual
orientation became one of the privileges or immunities protected by the 14th
Amendment, at the time of its passage or some time later; and if later,
when? This question is both telling and
devastating.
It is quite clear
that sexual orientation was not one of the “privileges or immunities” enjoyed by
citizens of the United States at the time of passage. The right of women to vote in the United
States was not found in this amendment.
The right of women to vote in the United States was not ordained until
the ratification of the 19th Amendment in 1920. And this fact is instructive.
Judicial fiat was not used to grant women one of the
“privileges and immunities of citizens of the United States” that hitherto had
been enjoyed exclusively by men. A
constitutional amendment was required. With this as an example, for the United
States judiciary to discover sexual orientation as one of the “privileges or
immunities” of the 14th Amendment is for it to express an impatience
in or a distrust of the amendment process of the United States constitution,
and exercises extra-constitutional powers in expressing that impatience and
that distrust.
Let us now turn to the other relevant principle of justice,
the primacy of the good over the right.
This principle is different from, and not reducible to, the other
principle mentioned, the principle of fairness in treatment. This principle requires us to ask, is it not
good, nevertheless, that a recognition of same-sex marriage be made since it
would bring happiness to same-sex couples, and is not this happiness a good for
society as a whole? This seems to be the
point Judge Shelby was aiming at.
Let’s start with the matter of the good. Moral virtue is the acquired habit of
desiring as one ought to desire and desiring nothing that interferes with the
obtaining of the real goods one needs to live a good life. As I have explained elsewhere, LGBT behaviors
are not expressions of desiring as one ought.
What one ought to desire are those things which conform to the norms of
human needs, including such circumscribed and limited goods as heterosexual
sex. Homosexual sex is precisely
something that one ought not to desire.
Consequently, the whole business of trying to normalize LGBT behaviors,
such as by foisting gay-marriage upon a society against its wishes, is an
attempt to find a real good in LGBT behaviors that don’t exist. Since LGBT behaviors deviate from the norm, an
effort to find happiness in them is fruitless.
Judge Shelby seems to be saying that homosexual sex is the
basis of a marriage, being the same as heterosexual sex, and society ought to
sanction one as it sanctions the other, and society as a whole will be happier
thereby. (and never mind the unhappiness created when society sees its settled
opinion overturned by judicial fiat.)
Even if a few homosexual couples find contentment in
gay-marriage, society as a whole is disrupted.
The whole good of the whole community will not be found in the
recognition of gay marriage. Though the
courts may find that heterosexual couples have no standing to challenge gay
marriage, heterosexual marriage is nevertheless demeaned by the gay mockery of
it. And society is hurt when
heterosexual marriage is demeaned.
The clearly stated will of a large majority of society was
held to be nugatory before an unaccountable judiciary, a minority of one.
The best kind of families for society, those with a mother
and father and children, is demeaned when it is equated with a gay pair. One is not just as good as the other in fact,
and it is wrong to hold so in law.
The community is also hurt by a judiciary that exceeds its
constitutional powers and arrogates to itself the power of amendment of the
United States constitution without the consent of the people. The Declaration of Independence makes
reference to deriving just power from the consent of the governed. When the judiciary goes beyond its powers and
acts contrary to the consent of the governed, it no longer can claim to be
dispensing justice. The good of society as whole is not served by a judiciary that exceeds
its powers.
A community is hurt when it comes to believe that its
judiciary and judicial system are no longer trustworthy, and in fact actually
are no longer trustworthy and faithful in its interpretation of the laws and
constitution.
The rising generation is confused by the mockery of
conventions brought about by gay marriage.
A community is hurt when it cannot be sure that its
cherished values will be upheld by an independent judiciary.
The above may be altogether too much rational reason for
Judge Shelby, or it may not amount to him to rational reason at all.
In summary, there is no basis in reason or in law for
homosexuality to be treated as the equal of heterosexuality. No individual human right is impaired by
defining marriage as a convention between a man and a woman. The proper method for recognizing qualitatively
new individual rights under the United States Constitution, or the Constitution
of any State, is through the applicable Amendment process, not through judicial
fiat. No social good is to be found in
mocking marriage by the creation of homosexual marriage through judicial fiat. The people of a state are entitled to
instruct their judiciary and their public officials without their motives being
impugned, and an alleged motive being used as the basis for overturning an
instruction. Society as a whole is not
benefited by the creation of moral confusion.
Judge Shelby’s ruling stands refuted on its merits.
As of this writing, Justice Sonia Sotomayor has stayed Judge
Shelby’s ruling pending appeal of the case to the Supreme Court. No more gay marriages will take place in Utah
until the Supreme Court renders its decision on the matter.
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