What is Natural vs What is Right, and the role of Judges
I would like now to continue my debate with Seth. You say:
To begin, I am happy to concede that the injury and destruction to the family spoken of by the Right is indeed a “red herring” in the gay marriage debate, as long as everyone is clear that this red herring is the central argument being used by most everyone opposing the legalization of same sex unions. In other words, I specifically included it only to negate its force. That is, it is imperative that we are all clear that this is not my red herring; I did not create a straw man to attack. I simply went at the dominant argument of the senators speaking in favor of constitutionally enshrined discrimination. And if you observe the statements of Santorum, Brownback, and their ilk, you will see precisely what I mean.I agree. This is one of the weakest arguments heterosexuals make on this point. Homosexuality does not harm heterosexual relations. It does make heterosexuals feel uncomfortable seeing members of the same sex being so....close, but it is not harmful to heterosexual marriages. Most arguments made by heterosexuals against homosexuality deals with how perverse they see homosexuality. They cannot see it as a reasonable argument to back homosexuality.
The arguments heterosexuals should counter with are like this: Homosexuals claim their acts and their feelings and their inclinations are "natural." That has been one of their main arguments, and a pretty powerful argument at that. There is a serious flaw, however, in claiming a right to an action by calling it "natural." Gays point to the animal world to show that species not too distant genetically from our own are also predisposed to some degree towards homosexuality, as if looking at the animal kingdom should decide how humans act. I'm going to use a red herring here, but it is vital to understand that whether or not something is natural does not equal that being right. This should show why we are humans, why we are different than the animals.
There are many things that animals do that are "natural." They defacate and urinate naturally where they please, usually to mark their territory. We humans do not mark our territory by our pee because it is unsanitary. But while unsanitary is "natural," it is not right. Male animals duel to impress a female, like among mountain goats who bang their heads, sometimes until one dies. It is natural, but it is not right. Animals steal from each other left and right. A snake steals eggs from a bird without any legal recourse against the snake. It is natural. We don't call it stealing because there is no law, but that is what it is. The egg belonged to the bird, not to the snake. The bird did not willingly give the snake its egg. It was therefore stolen. Is it right? No. Is it natural? Yes.
A lion murders every single day of his life. So does a wolf. So does an owl. So does a shark. So do a host of other animals. We don't call it murder, but I'm sure their victims will say it was unfair. Is it natural for a lion to kill? Is it natural for a shark to take a bite out of anything where it smells blood? It most certainly is natural. Is it right? No.
There are numerous instances from the animal kingdom of natural things that are not right. They are also had among humans. It is natural to steal. It is natural to kill. It is natural to defacate and urinate. But is it right? Releasing our excrement is right, but only under the right circumstances, so as to be sanitary and healthy. We are not to kill nor steal. We teach ourselves to control those natural instincts. It is natural to want something that is not ours, but we teach each other to not take that which is not given to us. The more we legalize and sanction baser natural instincts, the less human we become, and the more a "natural man," not a "right man."
In the Book of Mormon, it says:
19 For the natural man is an enemy to God, and has been from the fall of Adam, and will be, forever and ever, unless he yields to the enticings of the Holy Spirit, and putteth off the natural man and becometh a saint through the atonement of Christ the Lord, and becometh as a child, submissive, meek, humble, patient, full of love, willing to submit to all things which the Lord seeth fit to inflict upon him, even as a child doth submit to his father. Mosiah 3:19God is our creator. It is Him we need to aspire to, not the animal kingdom. Continuing on, you say:
As a moral argument, many of the early points you make are potentially forceful, Dan. However, it is imperative to recognize that, necessarily, morality can only play the most limited role in a society founded under the rule of law. You see, despite your easy presentation, there is no one fixed morality.A few things here. I disagree with your interpretation that morality can only play a limited role in a society founded under the rule of law. Our difference with the animal kingdom is that our laws are all about what is right vs what is wrong, not about what is natural or unnatural. It is natural to kill, but it is not right to kill, so we make a law banning murder. Where I do agree with you is where the morality questions begin to differ among the various groups. I'm not a fan of making one morality issue be the absolute over others, but as I mentioned earlier, the issue of homosexuality transcends organized religion and affects all of humanity. Gays say it is natural for some humans to be gay. This means that humans belonging to groups that don't believe that are also affected. Where you are correct that one morality should not infringe upon another is the Pentecostal example. Pentecostals believe men and women shouldn't dance together. That has no bearing on whether or not Mormons can dance together and it would be foolish for Pentecostals to tell others they should not dance. But being gay affects Mormons and Pentecostals the same.
And if homosexuality is about identity, not solely about behavior, then asking people to deny this profound aspect is to ask them to live as incomplete people. It is much deeper than merely sexual impulse, Dan. Without the possibility of the sanction of marriage, there is no way for homosexuals to engage in any sexual behavior without either lying and destroying the lives of themselves and others (if they deny their true selves and marry a member of the opposite sex) or still living the life of the unmarried fornicator (whether as gay monogamists or otherwise). Sexuality is a key aspect of human life. In this respect, the push of the pro-same sex marriage movement is about equality; and from my perspective, if this means fostering a deeper level of acceptance of the lifestyle, so much the better. But I recognize that your particular version of morality means that we disagree on this point.The issue of homosexuality is certainly far more profound and troubling than other "natural" inclinations found both in humans and animals. It is most troubling because it deals with an aspect about our humanity that we still don't fully understand, and that is our sexuality. Though proven "natural" to some extent, it is still not right. That is a tough answer, because it is not an answer people like to hear. Life is tough. Life is unfair, and sometimes in the worst possible ways. Does that mean we should lower our standards of life and of what is right? In my view, no. It would end bad for us to lower our standards.
I wish we humans understood human sexuality better. We most certainly don't with the way we go about uncontrolably mating with numerous partners, getting into unbreakable habits that chain us down into "natural" lusts that degrade our moral character. I'm not going to attempt an understanding of sexuality on a blog. It would do it injustice because 1) there is not enough time and effort to get the whole picture, 2) it is a sensitive and sacred topic (the power to procreate is a Godly power), 3) many will not understand anyways because the moment one starts mentioning anything related to copulation many will not think seriously about it, but instead snicker like 12 year old boys.
Continuing on to the legal debate, you say:
Laws and especially the Constitution are often sufficiently ambiguous that judicial interpretation and clarification can indeed look like the creation of positive law, but that is rarely what it is. Especially under the 14th Amendment, what you are really seeing is a judicial determination of inherent, one might even say embedded, rights lurking within the Constitution. This document contains more than mere positive rights after all, and is filled with tension and ambiguity designed to propel intellectual examination and soul searching on the part of the interpreter.While I am not versed in constitutional law (or any other law for that matter), but know only from rudimentary studies in school and on my own time, these are my thoughts. I agree that the Constitution is very ambiguous in regards to many things, (it is after all a very short document whereas laws passed take up usually several hundred pages to be sufficiently unambiguous legally on whatever topic a lawmaker tackles). The Founding Fathers, taking from English common law, understood the need for a maleable foundation to our law structure. That said, I still stand by the assertion that intent is key to understanding a piece of law, and judges are to judge the intent of a law and pass judgment thereby. Perhaps this is just a matter of what the role of a judge is. Does the Constitution lay out what the role of a judge is?
Alexander Hamilton writes in the Federalist Papers about the power, influence, and strength of the Judiciary in the American government:
Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments. This simple view of the matter suggests several important consequences. It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. For I agree, that "there is no liberty, if the power of judging be not separated from the legislative and executive powers.'' And it proves, in the last place, that as liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments; that as all the effects of such a union must ensue from a dependence of the former on the latter, notwithstanding a nominal and apparent separation; that as, from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; and that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security.Now, granted I am not learned on the writings of Mr. Hamilton beyond what your normally decently public-school-educated American knows, but it sure seems to me that he implies in this Paper that a judiciary that is unified with the legislative, with the power to regulate the actions of the citizenry should be feared, and that what is best for the public and the nation is a weak judiciary, one with no real influence beyond judgment.
The judgment in Massachusetts is an example of the judiciary doing all three things: judging, legislating, and executing. It rendered a judgment saying that the state of Massachusetts must allow gay marriages, even though there is no law defining such unions. They force the legislative to change the books, and force the executive to enforce the new ruling. This seems to fly totally contrary to what Mr. Hamilton wrote regarding the purpose and structure of the judiciary.
In discussing this topic, on the proper role of judges and the judiciary, Mr. Lewis discusses Joseph Story's treatise on judges. Mr. Lewis states:
Paragraph 14 indicates that the “will of the people” can be considered in two respects, namely (1) the will of the people who originally adopted the Constitution and (2) any subsequent contrary will of the people expressed by their agents through legislative acts. He said that the former is more fundamental than the latter and should prevail. He also said that this original will is not only superior to the legislature, but also the judiciary – inferring that when the court “interprets” the Constitution contrary to this original will of the people, the judges are violating their public trust.I'm sure you are familiar with who Joseph Story is, but to those who are not, here is a good but brief biography.
Continuing on, in his Commentaries on the Constitution, Supreme Court Justice Joseph Story states:
It can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature....The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body. The observation, if it prove any thing, would prove that there ought to be no judges distinct from that body.The Supreme Court agreed with his view, as Mr. Lewis shows in his article. Lewis quotes from that case:
Judicial power, as contradistinguished from the power of the laws, has no existence. Courts are the mere instruments of the law, and can will nothing. When they are said to exercise a discretion, it is a mere legal discretion, a discretion to be exercised in discerning the course prescribed by law; and, when that is discerned, it is the duty of the Court to follow it. Judicial power is never exercised for the purpose of giving effect to the will of the Judge; always for the purpose of giving effect to the will of the Legislature; or, in other words, to the will of the law.Mr. Lewis continues with more of Justice Story's commentary. He then adds his analysis from what Chief Justice Marshall said in Marbury v Madison. Mr. Lewis states:
In other words, all authority regarding the Constitution emanates from the people themselves from the bottom-up and the principles contained in the Constitution are deemed to be fundamental and permanent. Why? – Because (1) the people, through great exertion, have set forth their desired form of government – and the limits applying thereto – under the Constitution and (2) the formal democratic amendment process set forth in the Constitution itself is so difficult that it cannot occur very often. This implies that nobody – and this includes the judiciary – is allowed to tinker with those principles other than the people themselves as a collective and democratic super-majoritarian whole. .... Judges should try to interpret the document in a manner that is consistent with the intents of the drafters. Otherwise from generation to generation the meaning will change radically when it was supposed to be relatively immutable. If we don't try to tie our interpretation to the original intent, as best we can decipher it, then we will be governed by a "rule of men" rather than a "rule of law". The document will simply mean whatever a majority of 5 people on the Supreme Court says it means. Rather than it being a "living document" it will become a "dead document" since the clear language and intents represented therein will be freely changeable at the fancy of 5 people. If we allow this to happen, then we should stop the charade and stop using the words "constitutional" and "unconstitutional" and replace them with more accurate descriptors like "Supreme Court-able" and "Un-Supreme Court-able."Mr. Lewis quotes Thomas Jefferson who said:
"On every question of construction [of the Constitution] let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or intended against it, conform to the probable one in which it was passed."Yet another quote from Joseph Story, quoted in Mr. Lewis's article:
“The first and fundamental rule in the interpretation of all instruments is, to construe them according to the sense of the terms, and the intention of the parties [who drafted them.]”It seems clear from the Founding Fathers, yet again, that their intent was to create a judicial system that was the weakest of the three branches, that its function was merely to interpret the INTENT of the legislative branch. And therein lies the main problem in regards to gay rights. Have any previous laws intended for gays to get the rights they seek today? We most assuredly can answer that question with a loud, "NO!" I showed previously what the Founding Fathers thought about sodomy and same sex affections. It is clear from that and the state laws in effect back then that they would NEVER have intended for gays to be allowed to get married under American law. They also made it explicitly clear that the will of the people should rule the day, not the will of judges, as shown in these numerous quotes from Mr. Hamilton and Mr. Story. I'm sure I can find many other Founding Fathers who thought the same, if I go digging deeper.
There is a difference in creating a maleable Constitution that allows for change, and one in which judges are the changers of laws. It is clear that the Founding Fathers intended any changes to the Constitution, and to the laws in general, to occur through the will of the people, through the legislative. Judges have slowly grabbed up far too much power they were never intended to have. We were warned about this, and now they rule over America, unelected. I do not trust anyone in power who I cannot vote out of power. Judges were never meant to have power, only interpretive abilities.