Throwing Down The Gauntlet….

…in Alabama.  This is sort of extraordinary.

We’re not taking a position on the underlying issue; that is, whether there’s a constitutional right to marry another person of the same sex.  We would note only: 1) that once the SCOTUS waded into the whole marriage thing with Loving v. Virginia, holding that “miscegenation” laws were unconstitutional, it became difficult to see the boundaries of the fundamental constitutional right to marry; and 2) the necessary implications for polygamous marriages are too obvious to belabor.  There is no honest, principled way to hold that there’s a right to same-sex marriage while denying that this same right would include polygamous marriages.  And maybe that’s a Good Thing.

In any case, the real story here is that this is something of a constitutional crisis down there in Alabama.  That it is Alabama and not, say, Louisiana, is on the face of it fortunate for same-sex marriage-is-a-constitutional-right advocates echoing, as it does, the notorious role of Alabama in some of the civil rights struggles of the 1950’s and 60’s, and of course those advocates really like that comparison.

On the other hand, there are pitfalls here. At some point the moral equivalence of sexual orientation discrimination and racial discrimination, which has been an appealing line of argument, could break down, and that might be a real setback for the gay rights cause.  We’re not saying it will or won’t (break down, that is) but we find it difficult to imagine that fire hoses are going to be turned on anyone over a same-sex marriage debate that is taking place not so much in the streets but in the courts:


And it’s equally difficult to imagine that Washington will send troops to force clerks and judges to issue marriage licenses.  But at this point a scenario is developing where the Alabama state officials involved are going to be necessarily violating someone’s court order – state or federal – because it’s not possible to comply with both.  What if it pans out that some officials go one way and others go the other way?  So you can’t get your marriage license in one county you just drive over to the next one?  Is there going to be any civil unrest over that state of affairs?  Again, difficult to imagine, not to mention that’s pretty much how it’s panning out already:

It is undisputed that at that time respondent probate Judges King, Martin, Ragland, and Reed began issuing marriage licenses to same-sex couples in their respective counties.  Probate judges in some other counties refused to issue any marriage licenses pending some further clarification concerning their duty under the law.  Still other probate judges continued to issue marriage licenses to opposite-sex couples and refused to issue marriage licenses to same-sex couples.

But the deeper problem, if indeed that’s how it pans out in Alabama, pertains to the idea that the United States Supreme Court is the ultimate law-giver.  Certainly that has been the popular perception, but it’s never been as intellectually secure as the SCOTUS worshipers would like.

For quite some time, the SCOTUS held off on doing anything about the same sex marriage issue.  It was playing out in the states and localities of the country quite nicely without constitutionalizing it, but some federal appeals court judges forced their hand and now they’ve indicated they’re going to make a ruling.  It appeared there was a fragile consensus on the SCOTUS that maybe they should just stay out of it.

Too late for that now, though.  SCOTUS is in the soup now, and so are the rest of us.



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4 responses to “Throwing Down The Gauntlet….

  1. As a collateral descendant of polygamists on Staten Island, I approve of this essay and its constitutional inferences.

    Actually, most of what I’ve heard about modern polygamist families is that they’re pretty good about keeping their family affairs discreet enough to maintain a live-and-let-live relationship with non-polygamist neighbors. My collateral ancestors did likewise, telling friends and relatives that one of the wives was a widow rooming in their house. I forget whether it was my maternal grandmother (an incorrigible gossip and snoop) or her mother who discovered the truth about their domestic arrangement in a dedicated investigative trip to the Hall of Records. The stories I’ve read about relatively mainstream polygamists in Utah are pretty tame, usually an open secret in some guy’s social circle that he’s supporting one or two extra wives and their kids in a radius of several miles somewhere around Salt Lake City, maintaining a regular presence in their lives and basically being quite a good father for a man who’s juggling a career and two or three households. It sounds like these families are pretty discreet about their arrangements, partly for fear that they’ll provoke a backlash and partly for fear that they’ll offend people who are uncomfortable with polygamy. They sound nothing like the attention whores on “Sister Wives” or the belligerent neofeudal asshats in red rock country who banish “surplus” teenage boys from their trailer park villages and strongarm their way into control of their municipal police departments. I haven’t read much about the political history of Mormon polygamy, but it sounds like the polygamists reached a “don’t ask, don’t tell” truce within a few decades of Utah’s statehood. Granted, the truce with the monogamists came a lot more easily in Utah than in states back east, where infuriated locals had driven the Mormons from town to town, eventually forcing them to the frontier.

    Polygamy in Utah seems to generally be managed quite well through natural law. Responsible polygamists get much less press coverage than dirtbags presiding over rotten boroughs on and around the Arizona state line, but the former are probably more numerous than the latter. It’s too bad that same-sex marriage can’t also be managed through natural law, or that its proponents won’t be satisfied with a natural law resolution. This whole debate is weakening the civic fabric, especially when it veers in the direction of same-sex couples suing conservative bakers, wedding photographers, and wedding venue landlords for discrimination.

    On the other hand, same-sex marriage benefits may well be less amenable to a natural law solution than tacit polygamy in Utah. The belligerence on both sides certainly suggests so. I’m horrified by the in-your-face attitude of same-sex couples who try to force obviously discomfited small businesspeople to accept their patronage under duress, and I get disgusted with the moral preening of “traditional marriage” boors. There’s apparently a cultural willingness in Utah to let polygamists manage their own family affairs, just as one lets monogamists manage their own family affairs in the absence of serious child neglect or abuse. The loudest opponents of same-sex marriage are unwilling to extend the same presumption of domestic and parental fitness to same-sex couples.

    A key thing to understand about these opponents, maybe the key thing, is that they refuse to consider marriage as the civil institution that it is under modern US law because this understanding, in their worldview, profanes marriage as a sacrament. In other words, they’re aggressive theocrats. They’re Manicheans for whom the honoring of civic values inherently dishonors religious values.

    This was the sole point on which I openly stood up to the crazies in the Newman Club when I was in college. The subject at hand was a different one (voting as a matter of Catholic conscience), but the principle was the same. My point was that it was inappropriate for the Catholic Church to attempt to exercise a corporate franchise by telling individual Catholics how to vote because doing so would usurp the individual franchise, crossing a dangerous civic threshold. I got a polite reception and a fair hearing for this argument, but it went nowhere: everyone else who was willing to speak up insisted that George W. Bush was the obvious pro-life candidate.

    What’s at stake with same-sex marriage is a lot more than childrearing or, God help us, “family values.” The opponents, I think, have some decent natural law arguments against same-sex marriage and adoption by same-sex couples (and certainly in favor of kin adoption and adoption by opposite-sex couples, if possible), but these are completely separate matters from their fucking with benefits of marriage having nothing to do with procreation and childrearing, such as hospital visitation and tax status, in order get a rush of self-righteousness. The fears of pedophilia, adopted children being discomfited because they’re “different,” and so on are probably overblown in any event, since for some elements on the religious right this is clearly a moral panic.

    The equal protection problems with limiting marriage to opposite-sex couples have become justiciable precisely because marriage benefits have mushroomed far beyond the unitive and procreative aspects of marriage. It’s hard to imagine any remotely mainstream politician at the Constitutional Convention or involved in the Reconstruction arguing that marriage should be anything other than the union of one man and one woman. Then again, some Reconstruction-era politicians and many of the Founding Fathers would have been amazed, if not also appalled, by the number of extraneous privileges conferred by marriage in the United States today and the impossibility of exercising them without working through some Rube Goldberg policy contraption.

    As far as Alabama is concerned, there’s definitely a wrong-side-of-history look to that whole spectacle. It’s of a piece with the fire hoses and the billy clubs, and it’s also of a piece with Roy Moore’s asshat showdown over the Ten Commandments plaque (quickly replaced by the Ten Commandments Rock of New Ages). What’s really going on in these donnybrooks, though, isn’t a conservative counterrevolution against liberalism. It’s an ongoing campaign by totalitarian busybodies to assert themselves and their narrow public morality against any pluralistic impulse. The ultimate goal is to grind open society into oblivion. That’s how parts of the South ended up under the sway of the KKK, then of the white “Citizens’ Councils,” then of various religious establishmentarian shitheads, and of carceral state demagogues and union-busting creeps all along. The local tyrants in Alabama are unusual (but not unique) in being so openly belligerent in this campaign, but some form of this tyranny is a huge problem across most of the South.

    It’s no coincidence that these are the same states whose leaders most reliably gin up furors over states’ rights and most reliably get their own states’ rights suspended by horrified federal authorities. They can’t resist using federalism for tyrannical purposes, some of them so evil that they stun the citizens of most other federal countries. As obnoxious as the Flems and the Walloons or the Quebeckers and the rest can be to each other, no serious faction in Belgium or Canada is fighting for a local option to execute convicts without due process or terrorize racial minorities under color of law. And a disproportionate number of the holy-shit reactions that foreigners have to American politics are provoked by Southerners.


    • Hi Andrew. I have a lot of catching up to do reading your blog. Ironically, the stuff you write is so entertaining it feels like goofing off to read it, so I often don’t start because when I do it’s hard to stop.

      I’ll just mention a couple of things here. I’m pretty much a traditionalist Catholic. I like the old mass, and for reasons I won’t go into here, that’s putting it mildly.

      My opinions don’t matter to many people, but in any case I believe everything the Church would say about gay marriage; at the same time I have a modicum of sympathy for it. We have been awash in all kinds of sexual excess since my early childhood, and one result has been that the occasional puritanical backlashes have become increasingly arbitrary, increasingly excessive themselves (which translates into cruelty), and at this point they are not only meaningless but counter-productive. For one thing it reinforces our embarrassing mental sloth: it’s so easy to climb up on a soapbox when you find the occasional semen stained dress. People do sexual things privately and aside from resulting pregnancies they remain hidden, so there’s a certain perverse relish when someone is caught, leading to greater intensity and like I said that means cruelty.

      By way of contrast, you could get up on a soapbox about gluttony, but it’s such a target rich environment you risk being 1) boring; and 2) ostracized yourself. The whole thing will likely backfire.

      On another level I don’t worry about it because as you say the natural law argument is pretty good, and if it’s correct then people can do all these pretend things and 1) it’s none of my business; and 2) it’s not even my job to have an opinion for them. If they want to know what I think they can certainly ask.

      By way of illustration, a priest can’t consecrate an orange into the Eucharist: you need form, matter and intention and an orange is the wrong matter. If two people of the same sex are not the right matter there will be no true marriage between them no matter what anyone does or pretends to do, and there’s nothing I or anyone else can do about it.

      Polygamous marriages are, of course, an entirely different thing. There can be little doubt that they do not violate natural law (though of course they can be and mostly are undesirable for lots of reasons), but the point is they are clearly a possible form of marriage and they have been practiced in various places over the whole of human history.

      To draw an analogy, I accept the laws permitting ‘divorce’ and work with them even though of course I believe divorce is, strictly speaking, impossible. If one is married and marriage is a sacrament then one can no more get divorced than one can become un-baptized. The whole idea is silly, and you also might be surprised at how in a lot of ways and for the vast majority of people I’ve dealt with, a real “divorce” never really happens, no matter what any decree says.

      I mean, I can only do so much, and these things aren’t up to me. I have to deal with the world as it is, not as I would will it to be.

      Make sense?


      • That’s one of the most coherent explanations I’ve ever seen. A serious problems with the more prominent same-sex marriage opponents is that they lack the humility and intellectual honesty to be satisfied with natural law arguments and let these arguments speak for themselves. Prominent same-sex marriage supporters are no better. It’s a standoff in which netiher side will lay down its arms until it has the full coercive force of positive law on its side.

        Come to think of it, no self-preserving professional activist wants anything to be resolved through natural law. The activist class thrives on dysfunction and discord and suffers in their absence. The acrimonious same-sex marriage debate (more accurately a pissing match, I’m afraid) serves as a disturbing microcosm of the destructive masturbatory fury that activists for so many causes inflict on advanced societies today. It’s a First World Problem, but some of it seems idiosyncratic to the US or to the Anglo-American world. Maybe the United States has enough surplus wealth and political capacity to weather this storm. I sometimes fear that it does not.

        The hardcore Catholic revanchists in my Facebook feed have been dabbling in natural law recently, but they’re showing little interest in backing off on their clerical authoritarianism or their campaign to remold secular law in the image of their very austere religiosity. I’ve been a party to their extremism for years, and I’m jaded enough to figure that the worst of it won’t stop until those involved have lost all interest in sex due to old age. If they really believed in natural law, they wouldn’t distinguish themselves by making moralistic calls for a joint church-state campaign to impose legally binding, nearly totalitarian social controls on private sexuality. A few of these people are real kooks. It’s disturbing sometimes, because I feel that I’m losing beloved friends to the vortex.

        Anyway, natural law sometimes comes up as one of a battery of cipher arguments that they basically pull out of a rhetorical grab bag and throw at the wall, figuring that something will stick. It’s part of a mix-and-match of scriptural references, papal bulls, episcopal statements, Lewis and Chesterton aphorisms, bits and pieces of commentary from doctors of the Church, vacuous emotional arguments, and internet memes. I.e., tautologies, recursive tautologies, and variously reworked appeals to the same narrow clerical authority (again, a form of positive law), with an unpredictable combination of self-seriousness and cuteness.

        It’s stunning to watch college-educated adults with liberal arts backgrounds argue this way. This childishness is consistent with the frightening emotional, intellectual, and civic regression that is often reported or plainly visible in various aspects of American public life. Caring exclusively about religious piety is one way to get there. So are freaking out over terrorists behind every bush, becoming all weepy and aggrieved over the violent deaths of total strangers, being vapidly narcissistic (selfie sticks, etc.), and bringing parochialism down to the level of the nuclear family, to hell with anyone else. These are different paths to the same ugly destination. Good luck finding any commonweal or self-government at the end of that rainbow.

        We’ve gotten to the point that the notion of a natural law resolution to same-sex marriage is radical. A few years ago I saw an interview of Rufus Wainwright on CBS Sunday Morning, in which he mentioned his belief that gay marriage would always be different from straight marriage. He seemed mystified by the gay activist community’s insistence on total equality of form and function. Wainwright described a very interesting family life: openly gay, in a serious long-term relationship with a live-in boyfriend (subsequently married), but also coparenting a young child he conceived with a long-time lesbian friend (“I obliged her”). At the time, I immediately recognized that he had an unusually healthy understanding of natural law, although I couldn’t really articulate how or why it was so healthy.

        The United States needs more people with attitudes like Wainwright’s and fewer positive law freaks. Otherwise we’re looking at serious, maybe terminal, national decline.


      • Another thing that occurs to me is that the perversion of marriage is coming from all angles. A bunch of pictures from destination weddings in Aruba have been coming over my Facebook feed recently. These are from Philadelphians who seem to have no family in the Caribbean, so the frivolousness is obvious. There’s also the proliferaing thicket of caterers, photographers, etc., who would be out of work if couples toned down their receptions or put on their Sunday best and went over to the clerk-recorder’s office some afternoon.

        Then there’s the Chick-Fil-A donnybrook of 2012. I’m still pinching myself over that. It was stunningly profane, maybe the single most profane thing I’ve ever watched unfold. It’s just bizarre that the public discussion of marriage could be successfully hijacked by a corporate executive looking for free publicity for his company’s obscure line of chicken sandwiches. There’s no way a savvy citizenry would fall for a stunt like that. Dan Cathy trolled not only gays and lesbians but divorced people in order to steal religious-right market share from McDonald’s. Nearly three years later, that bullshit is still working. Only a foolish and heavily propagandized people could fall for a stunt like that.

        It’s as if we’ve fallen under the spell of a Pareto Distribution in which the only things anyone hears about marriage are from moralizing blowhards or disingenuous mercenaries. It’s impossible for people who sincerely care about the sacramental aspects of marriage to get a word in edgewise because the agora has been overrun by people who are either trying to score cheap points or make a quick buck on some Disney fairy tale version of marriage (which always ends at the wedding reception, anyhow).

        The wedding industry offers good money if one can stand the borderline-amoral unctuousness of it. I know I can’t.

        The moral decay runs a lot deeper than the pundits dare admit.


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