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  • Violating the social compact

    Posted by Steven Den Beste on October 25th, 2006 (All posts by )

    I support gay marriage. And I’m glad to see that a lot of states are
    considering, or have already passed, amendments to their state constitutions
    forbidding gay marriage. My position isn’t inconsistent, because there’s a
    deeper issue involved.

    What is the function of an electoral system? You can argue about that all
    day, but it turns out that the deep purpose is to convince people to accept
    that they’ve lost. We, as citizens of a republic, have made a compact with each
    other that we will make certain decisions collectively through some combination
    of voting and representation, and we know that inevitably the process will make
    at least some decisions that we as individuals despise.

    But our compact with one another is that if the process was reasonably honest
    and if everyone participated, the losers will concede defeat. Of course, they
    may try to work within the system to change those decisions, and that has
    happened many times. But the compact is that such decisions change because the
    majority agree with the change, and the activist minority will work to convince
    the majority that change is needed, and will accept their defeat in the mean
    time.

    Some activists in this country have been breaking this compact. It’s been a
    particular problem with leftists over the last 35 years. Instead of trying to
    convince the majority that certain things should change, they’ve been making an
    end-run around the electoral system and getting those changes made via activist
    judges.

    Irrespective of the merits of individual decisions, the basic problem with
    this is that it cheats the electorate by forbidding them from participating in
    the process of collectively making those decisions. And the "losers" don’t
    concede defeat, because they never got their chance to participate in the
    decision.

    I support legal abortion but I think that Roe v. Wade was a dreadful
    decision. And the abortion issue is a perfect example of the kind of thing I’m
    talking about, because 33 years later the issue is still contentious. If it had
    been settled through the electoral system in 1973, it would have faded out by
    now. But because it was decided by what I really do think of as judicial
    usurpation of the electoral process, those who oppose abortion have never let go
    of the issue.

    And so it is with gay marriage. Activists in favor of gay marriage are
    contemptuous of most of their fellow citizens and are impatient. They have
    deliberately eschewed that social compact and have taken to the courts, and have
    managed to get two State Supreme Courts now to declare that gay marriage is a
    right and thus legal.

    I think gay marriage should be legal, but this is not the way to go about it.
    And that’s why I’m happy to see electoral backlash. Gay marriage is now legal by
    judicial usurpation in two states, but it is now explicitly banned in a lot more
    states than that. Many, indeed I would conjecture most, of the voters who helped
    pass those bans don’t actually feel very strongly about gay marriage as an issue
    one way or another.

    But they care deeply about that social compact and are damned if
    they’re going to let elitist activists run rough-shod over the system that way.

    Why am I glad, then, to see those laws and amendments get passed? Because
    they can be changed, but they won’t be changed by judges. Leftist activists in
    favor of gay marriage who have been trying to violate that social compact will
    now be forced to embrace it — because in states where one-man-one-woman laws
    have been passed, it will be the only way they can get those laws changed.

    I think abortion should be legal, and I think Roe v. Wade should be
    overturned. Then this country will actually engage the issue. The social compact
    will kick in. Advocates for both sides will make their cases, and the voters and
    their representatives will, eventually, come to some sort of conclusion about
    it.

    That’s how the system is supposed to work. And that’s a lot more important to
    me than gay marriage or legal abortion, though I support both. If the price of
    legal gay marriage and legal abortion is destruction of that social compact,
    then it’s too high.

     

    29 Responses to “Violating the social compact”

    1. Steven Den Beste Says:

      Even though their tactics have brought about positions I support, they’ve disenfranchised me, too. And I resent that; I want to be involved in making the decision.

    2. Peter Jackson Says:

      Although I agree with you in regards to abortion and Roe v. Wade, I believe gay marriage is different. Whereas the Constitution is silent on abortion outside of the 9th and 10th Amendments, it is not silent on equality before the law. You and I are no more “cheated” by these judicial decisions regarding gay marriage than we are by Brown v. Board of Education.

    3. Steven Den Beste Says:

      Peter, sorry, but the one-man-one-woman law is equal protection. Any man can marry a woman. No man can marry a man. (Likewise, any woman can marry a man. No woman can marry a woman.) I disagree with such laws but they do not violate the 14th Amendment.

      It’s true that this means not everyone can marry who they love, but that’s what’s known as “disparate impact” and every law has disparate impact. A man can marry a woman, but cannot marry a man, and cannot marry a child, and cannot marry a corpse, and cannot marry a car — or a blow-up doll.

      If you search hard enough you can find someone who wants to do all those things. If we decide that there’s a constitutional right for anyone to marry who he loves, all hell breaks loose.

      Under the Tenth Amendment both marriage and abortion are matters for the states, and that’s where it should be getting settled: with the voters and legislatures of the states.

      Under the 14th amendment, “equal protection” doesn’t require accomodation of differing circumstances and different motives.

    4. peter jackson Says:

      Steven!

      Peter, sorry, but the one-man-one-woman law is equal protection.

      Is it? I can’t think of a single instance other than marriage law where parties to a contract are defined as anything other than being of age and of sound mind. Current marriage law in most of the country deprives an entire class of individuals, in an a priori way, of the right to enter into a contract enjoyed by other citizens, exactly like the old miscegenation laws did.

      yours/
      peter.

    5. RPD Says:

      Well Peter, for the last few thousand years (or at least the last few hundred in America) we all understood marriage to be a man woman thing. The 14th amendment was never understood to create a new marriage right by either its writer or the people who ratified it. Now it’s at the point where a lot of us have gotten pretty irritated by activists trying to hi-jack it.

      You’re looking for a new right, you need new legislation. I’m pretty indifferent to gay marriage, and would probably vote for it if it came up on the ballot. But I’m firmly opposed to the electoral process being over run.

    6. peter jackson Says:

      RPD!

      Well Peter, for the last few thousand years (or at least the last few hundred in America) we all understood marriage to be a man woman thing.

      I agree. But I believe today that understanding manifests itself as a religious preference, attested to by the fact that the opponents of gay marriage are almost exclusively religious opponents.

      The answer is very simple even if it isn’t obvious. The “sanctity” of marriage (or any other religious institution or practice) is no business of the state. “Marriage” is a religious contract, properly adjudicated by religious institutions, not the state. In the eyes of the state, all marriages should be civil unions, a legal household contract between the party of the first part and the party of the second part.

      But the best part is that after we get over this issue, that’s it. There will be no more official second-class citizens. For the first time we will be the Land of the Free, period, with no footnotes. So if I am biased by anything, it’s the fact that I’m truly looking forward to the post-racialist/sexist/discriminationist era.

      yours/
      peter.

    7. LotharBot Says:

      “If [abortion] had been settled through the electoral system in 1973, it would have faded out by now.” This is largely because, if all sides had been able to participate in the decision, it would’ve been decided in a far more balanced way. When activist judges make decisions, they tend to make extreme decisions, rather than sensible compromises. Through Roe v. Wade and Doe v. Bolton, the USSC decided to allow abortion on demand for any reason at any time before birth is completed (leading to atrocities like Partial Birth Abortion.) Had the issue been decided by voters, we’d most likely see abortion allowed in certain circumstances — perhaps something like on-demand early term; rape, incest, or life of mother medium term; life of mother late term (this might vary from state to state, as well.) We’d also see legal protections for the unborn mid or late term. Instead, we see people angry about Scott Peterson being tried for 2 counts of murder because allowing the unborn Connor to be counted as a human undermines Roe v. Wade.

      If the “losers” had been given a chance to participate, both sides would’ve gotten some of what they wanted, and we’d have a much better law. Maybe one side would’ve gotten more than the other (in some cases, one side will get a LOT more than the other) but at least all sides will have the chance to participate. When you have activist judges inventing law, one side feels they’ve been completely ignored, and they often feel a great injustice is being done. The other side can’t risk correcting that (possible) injustice, because they fear any compromise will endanger the whole thing.

    8. evariste Says:

      There will be no more official second-class citizens. For the first time we will be the Land of the Free, period, with no footnotes. So if I am biased by anything, it’s the fact that I’m truly looking forward to the post-racialist/sexist/discriminationist era.

      What about the polygamists? They’re agitating for legal recognition as well. What about the animal-lovers? What about the NAMBLA folks? All of these people argue that they are oppressed and should have the “freedom” that is so unjustly denied them.

      Sorry, that’s not a very convincing line of argument.

    9. Sam Says:

      Evariste, you’re trying to slide down a slope covered with sandpaper.

      “What about polygamists” != “What about NAMBLA”.

      Marriage is a contract between adults. Consenting human adults of sound mind. Animals can’t consent. Children can’t consent. Marrying a seven-year-old or marrying a horse makes as much sense as marrying your filing cabinet, if we use the word marriage in its modern, contractual sense, instead of the historic sense of property right transfer from patriarch to suitor.

      It’s bringing NAMBLA and b**stiality into the gay marriage debate that’s the unconvincing line of argument.

      And:

      [F]or the last few thousand years (or at least the last few hundred in America) we all understood marriage to be a man woman thing.

      Depends on who you ask. For a lot of folks, it used to be a man woman woman woman woman thing, if they could afford such luxury.

    10. none Says:

      Unconvincing to whom?

      Gay marriage advocates cannot simply argue that the marriage = man+woman is now simply a “religious preference today” despite thousands of years of settled precedent, and THEN argue that NAMBLA is different AND WILL CREDIBLY REMAIN that way in the future.

      They are different only because elite sensibilities about them are different.

      The majority does not think that polygamy is any farther from traditional marriage than gay marriage.

      The Social Left (including libertarians) may wish to try to persuade people that is not so. But this sort of legislation by judicial fiat is a good example of why the average American is so scornful of elite sophistry.

      Rightly so. The average man in the street who is not very good at verbal sleight of hand, knows in his gut when he is being bamboozled. He may not be able to write scintillating articles in the NY Times about it, but he can vote. And if even that fails, do not be surprised as support for our current system of democracy slowly erodes.

    11. Sulaiman Says:

      Gary Becker — the case for polygamy. Why are consenting adults not legally allowed to form a union when they want to be in a man woman woman … (or woman man man …) union?

      Here is the link.

    12. James R. Rummel Says:

      I can’t think of a single instance other than marriage law where parties to a contract are defined as anything other than being of age and of sound mind.

      I think this is an attempt to construct a straw man. The idea here isn’t how two people who enter into a contract are defined, the point is whether or not they are eligible to make such a contract in the first place.

      That is the position of those who oppose gay marriage: that it is a union where people who are of the same sex are ineligible.

      But I believe today that understanding manifests itself as a religious preference, attested to by the fact that the opponents of gay marriage are almost exclusively religious opponents.

      I would agree with you if there wasn’t a very clear financial advantage to being married, from taxes to insurance benefits to inheritance. Claiming that it is a religious matter merely because you perceive opponents to such a union as being “almost exclusively religious opponents” is not reasonable.

      I am not concerned about gay marriage, and would support it if it came up on the ballot. But I am increasingly wary of the rhetoric employed by those who actively campaign for the measure. Marraige is hardly a right as I understand the term, no matter how many times gay marriage proponents insist that it is.

      I also note that a fair number of the people who oppose such unions voice concerns for the unintended impact on society, the author of this post being one of them. Conflating these concerns with religious bigotry not only ignores valid objections, but it also seems to be a deliberate attempt to smear your opponents.

      James

    13. Anonymous Says:

      ‘s bringing NAMBLA and b**stiality into the gay marriage debate that’s the unconvincing line of argument.

      Hear hear. All you have to do is switch the civil right in question to see how silly this argument is:

      Why, if we give women the right to vote, the next thing you children will want the right to vote too! And—animals! Animals will want the vote! And then corpses! And dining room furniture…

      yours/
      peter.

    14. Thief Says:

      Sulaiman:

      Gary Becker — the case for polygamy. Why are consenting adults not legally allowed to form a union when they want to be in a man woman woman … (or woman man man …) union?

      And here is the case against polygamy. Brief version: n order to get polygamy, you have to give up liberal democracy. That is too high a cost.

      When it comes to the organizing of society, I have but one simple rule: if it ain’t broke, don’t fix it.

    15. Loweeel Says:

      The rationale at prohibiting incest (assuming it’s consenting adults) has long been to prevent lethal recessives and other harmful recessives from accumulating in the population.

      Given that homosexual relationships cannot produce both parties’ genetic children, there is no longer ANY reason for barring adult consensual incestuous marriages; under the (completely unwarranted) strict scrutiny used by the NJ Kangaroo Court, the prohibition on incestuous marriage is no longer narrowly tailored, because it includes a class to which its rationale is inapplicable.

      Wow, how did all these worms get out of that can?

    16. triticale Says:

      Why, if we give women the right to vote, the next thing you children will want the right to vote too! And—animals! Animals will want the vote! And then corpses!

      You are referring, I take it, to the suburban Democrat every Chicagoan knows about who stated in her will that she be was to buried in the city so that she could continue to support the party.

    17. peter jackson Says:

      Thief!

      Brief version: n order to get polygamy, you have to give up liberal democracy. That is too high a cost.

      I read the link, and I think this is pretty overwraught. Post-agricultural economies will probably discourage polygamy for most of us the same way it disourages producing too many children. While two-person marriages tend to produce efficiency, the law of diminshing returns is in effect. At some point the number of spouses will prove uneconomical.

      Anyway, more to the point, there is a big difference between the issues of gay marriage and polygamy: the prohibition on polygamy applies to everyone, and thus we all remain equal under that law. Not so in the case gay marriage.

      Regarding unforseen circumstances, I fully accept that there may be some unintended consequences to getting government out of the marriage business. Still, this isn’t to say that all of these consequences will be undesirable. Nor is it the same as sayiing that it’s likely we will all rue the day we legalize gay marriage.

      Regarding incestuous marriage, I disagree in classifying it as a can of worms, but it is definitely a worm, and a slippery one at that.

      yours/
      peter.

    18. LotharBot Says:

      “the prohibition on polygamy applies to everyone, and thus we all remain equal under that law. Not so in the case gay marriage.”

      Uh… how is it “not so”? For any value of “I”, I’m not allowed to have more than one spouse. I’m also not allowed to have a spouse of the same sex as I am. Both prohibitions apply equally to everyone. There are good arguments out there for gay marriage; what you posted is NOT one of them.

      Regardless… the point is, this is an issue that should be decided by the people, in a manner that takes into account everyone’s concerns. It’s not an issue that the courts should settle by inventing laws that don’t truly exist.

    19. Steven Den Beste Says:

      I suppose this was inevitable.

      You’re arguing about what the decision should be, and ignoring the fact that none of you are going to be permitted to participate in making that decision.

      Even if we disagree on whether gay marriage should be legal, don’t we all agree that we’d like to be consulted on the issue instead of having the decision made by a handful of judges?

    20. Steve B Says:

      This debate merely pushes the question up a meta-level. Everyone who believes in democracy (rather than mobocracy) accepts that, no, the two wolves and one lamb don’t simply vote on the lunch menu. The question before the floor is not simply “decided by voters, good; decided by the agents of the system, bad” — it’s whether this specific issue may legitimately be left to majoritarian control.

    21. peter jackson Says:

      Steven!

      You’re arguing about what the decision should be, and ignoring the fact that none of you are going to be permitted to participate in making that decision.

      In the United States there are a lot of decisions in which we’re not allowed to participate. For instance, we’re not allowed to vote on whether we’d like black people to become the property of white people, or whether gay people have the right to own property. Technically this is because these decisions have already been made, decided when the 1st Amendment guarantee to freedom of association was ratified and when the 14th Amendment’s guarantee to equality before the law was ratified.

      Protecting the individual rights of minorities from the whims of the majority is part of the American social compact too. And as a Jacksonian (classical) liberal capitalist who agrees with your positions on virtually everything except perhaps this, I see this arrangment as a feature, not a bug.

      yours/
      peter.

    22. Terrance Says:

      My only problem with that is the history of civil rights and the role the courts have played in the advancement of civil rights, as I understand it from the perspective of a black gay man. To me, Brown v. the Board of Education was a good thing, in that it made opportunities available that would not have opened up for generations if not for the courts.

      The way I see it, the courts are a legitimate avenue for minorities to seek justice when the will of the majority is the exact opposite of justice, and are a more immediate way to access justice. Their function in our system, to me, embodies the understanding that might (in this case, might in numbers) does not always make right.

      Change that function into one of essentially rubber-stamping majority opinion, and we shut off an avenue for minorities to seek justice and more immediate relief from injustice. We inch closer to absolute majority rule, in which there really aren’t any unalienable rights, if the majority decides that’s how it should be.

      And, we ask people who are experiencing injustice to simply live with it longer, rather than have the courts as a means of accessing rights and protections they and their families don’t currently have.

      I understand that while a court can mandate how people treat you, it cannot change their hearts on the question of your humanity. It cannot change what people believe. In the case of gay people, that comes from more of us coming out in our communities and families.

      It’s a much longer process, from there to legislative victory. That doesn’t make it less important. So, I think we need both legislative and judicial strategies, because our families need these rights and protections now, and because the longer process of changing minds is as necessary as immediate relief from injustice.

    23. Terrance Says:

      All that was really a long-winded way of asking the question: Do we really want civil rights to become a matter of majority opinion?

    24. Steven Den Beste Says:

      Terrance, in the end it is a matter of public opinion and cannot be otherwise.

      It wasn’t Supreme Court decisions that brought about the Civil Rights victories of the 1960’s. It wasn’t even passage of the Civil Rights Act of 1964. It was the end result of decades of work by activists who recognized that in the end the only way they could win was by convincing the majority of Americans. So they worked away, and eventually they did so.

      The courts, and even Congress, cannot force the American people to act in certain ways if the people strongly oppose doing so. As a practical matter, rights only exists because we recognize them and are willing to defend them. “We” means the American people collectively.

      The courts can only give you a fragile, temporary, and partial victory. You can only win in the long run if you convince the majority of your fellow citizens that you’re right.

      So why not start now?

    25. Jonathan Says:

      The gay-marriage advocates were unfortunate. Because many judges are sympathetic to their agenda, and because judicial action held the promise of imposing their agenda all at once and over the objections of opponents they despised, they took the wrong course of pursuing reform via the courts. Compare them to gun-rights activists, who understood from the beginning that the courts were hostile and that any reforms would have to be accomplished incrementally via legislation. Now, twenty years later, we have successful and reasonably popular concealed-carry laws in most American states, while state-sanctioned homosexual marriage exists in only a few jurisdictions and remains a matter of great controversy with numerous entrenched opponents.

    26. Steven Den Beste Says:

      Brown v Board of Education didn’t end legal apartheid in the US. It took another ten years, and the passage of the Civil Rights Act of 1964, for that to happen.

      And the reason it happened is that the majority of Americans agreed that it was right to do so.

      Dr. King’s campaign of civil disobedience in the South in the 1960’s is a classic. Part of why he was successful is that he always, always, understood that he could only gain victory by convincing the majority of white Americans that his cause was just.

      Dr. King didn’t go to court. Dr. King appealed to the “court of public opinion” because he knew that was the only one which ultimately mattered. If Whites were against him, it didn’t matter what courts said.

      Brown v Board of Education is proof of that. It didn’t end apartheid. It didn’t even end segregated schools. All it did was make a lot of people mad.

      Apartheid in America ended when, and only when, the majority of Americans agreed that it should. Gay marriage will only happen with the majority of Americans agree that it should. The courts can’t change that, and the courts shouldn’t try.

      It doesn’t matter whether this is how it should be. I myself think gay marriage should be legal. But I also think it should become legal when we who advocate it have convinced the majority of our fellow citizens of that, because there’s no other way to make it real, and permanent, and accepted.

      On a deep level, democracy is more than just holding elections. Democracy is a contract the people have with each other, and an agreement that they’re all in it together. If one subgroup decides to shut out all the others…

      …the others will respond by shutting out that subgroup. And they’ll be right to do so. And that’s what we’re seeing: backlash against gay marriage in the form of state constitutional amendments banning it.

      If y’all want to be part of our team, you have to play by our rules.

    27. peter jackson Says:

      Okay, but can’t we honor all the rules? The last time I checked the equal protection clause, the due process clause, and “the right of the people peaceably to assemble, and to petition the government for a redress of grievances” were all part of the rules, legally incorporated as to apply to the states.

      And honestly Steven, with all due respect, I submit that gay Americans—as Americans—are already on our team. And they’re being treated very shabbily, not merely in a de facto way, but de jure.

      yours/
      peter.

    28. Steven Den Beste Says:

      You’ve just proved my point: de facto and de jure do not necessarily track.

      Which means that putting lots of effort into changing de jure isn’t going to gain the effect you want.

    29. Fishnet Says:

      The question of Gay marriage is not a legal matter. It is a matter of public policy.

      Those that support Gay marriage must answer the following question: From the point of view of public policy, is it wise to encourage a life style that is barren at a time when the fertility rate of the United States is below replacement and falling, and when that lifestyle is associated with a life expectancy one to two decades below a straight lifestyle?