Democracy and Marriage

An essay titled simply “Jay Sekulow on ‘Same-Sex Marriage’ Case” was published at Catholic Online today. In a glowing introduction to the essay, Deacon Fournier writes that Sekulow is “the finest Supreme Court Advocate I have ever encountered”. Let’s hope that Sekulow does a little more homework before going to court than he does before writing embarrassing and uninformed articles for Catholic Online.

Sekulow writes:

“By a vote of 4-3, the California Supreme Court struck down a state ban on same-sex marriage – changing the definition of marriage by judicial fiat.

The decision is a disappointing one and represents another example of an activist judiciary that overreached by taking this issue out of the hands of the state legislature where it belongs.”

The definition of marriage belongs to the state legislature? Let’s see where that gets us …

“The California high court failed to uphold what the state legislature and an overwhelming majority of California voters clearly understand – that the institution of marriage is limited to one man and one woman.”

Wrong, wrong, wrong. The California state legislature voted twice – twice! – in the last four years to legalize same-sex marriage. Both of these bills were vetoed by our stuffed-shirt windbag girly-man of a governor out of sheer political expediency. ( Yes, that would be the same governor who now “supports” this ruling and opposes the Protect Marriage initiative. With respect to same-sex marriage, Schwarzenegger told a reporter in an interview last week: “I’m against it, but I don’t have a problem with it”. Seeking to clarify, the reporter asked “So you’re against it?” “No”, replies the governor, “I said I don’t have a problem with it.” Gotcha. ) If the California state legislature had its way, we would have been a gay-marriage state in 2005.

As to the “overwhelming majority” of California voters, the vote in 2000 was 61% in an election where Democrat participation was unusually low. If the Protect Marriage initiative were voted on today (assuming a balanced voter turnout) the margin of victory would be razor-thin – not an “overwhelming majority” by a long shot.

In Massachusetts popular support for same-sex marriage increased dramatically after the 2004 ruling, which stands to reason since most people tend to view the law as a proximate measure of morality. Therefore it is quite possible that here in California, where “the people” have been gradually warming up to the idea of same-sex marriage for decades, there will not be sufficient votes come November to amend the constitution. We shall see.

The problem with today’s so-called “conservatives” is that the rhetoric of democracy no longer serves the cause of faith, family, and traditional values. This, of course, was easily forseen by those who bothered to think ahead. Democracy only works when there is a social consensus that agrees with the truth. That consensus is eroding because democracy itself – in the ideological form embodied in Sekulow’s remarks – weakens the very notion of truth.

We need a new political vocabulary.

“What is stunning about this decision is the fact that the court overreached and usurped the authority of the state legislature and the voters of California.”

The same tired, useless talking-points again. The legislature is not on our side, Dr. Sekulow. And the voters could turn on us in a heartbeat. California is arguably a center-right state, but most of our voters lack serious political convictions and eschew what they see as “partisanship”. In November they will vote for the side which seems the least partisan and makes them feel good about themselves.

“The majority … simply does not have the right to erase, then recast, the age-old definition of marriage, as virtually all societies have understood it, in order to satisfy its own contemporary notions of equality and justice.”

Quite so – and this applies not only to Supreme Court justices, but to any majority who would dare “erase, then recast, the age-old definition of marriage”.

“The California Constitution says nothing about the rights of same-sex couples to marry. On the contrary, as the majority concedes, our original Constitution, effective from the moment of statehood, evidenced an assumption that marriage was between partners of the opposite sex.”

True, but this knife cuts both ways. If the majority of the people, or their representatives, voted to legalize same-sex marriage in California, the Supreme Court would be obliged to override the “will of the people” in order to defend the traditional definition of marriage which is implicit in the constitution. And what would the American Center for Law and Justice have to say about it then?

“How to define marriage must rest with the People and not become, as Justice Baxter in his dissenting opinion put it, an ‘exercise in legal jujitsu.’”

How to define marriage must never “rest with the people”. That’s how we arrived at this disastrous juncture in the first place. “The people” have already redefined marriage as a voidable, transitory business contract, for the subjective purposes of sexual pleasure and personal fulfillment, having no intrinsic connection to the begetting and education of children, and without any essential relationship to the health of our civilization and social order. There is no reason for “the people” to oppose same-sex marriage other than what someone has called “the yuck factor”.

I’m glad that most Californians, thus far, still have “the yuck factor” when it comes to homosexuality. But the reality is that “the yuck factor” is all that stands between California and barbarism. The natural and theological underpinnings of marriage have already been destroyed by champions of democracy like Jay Sekulow. When “the yuck factor” disappears – and our sick, degraded culture knows how to deal with “the yuck factor” – California will have become what most people east of the Sierras, quite erroneously until now, have long believed it to be, a paradise for sodomites and a land defined by perversion.


13 thoughts on “Democracy and Marriage

  1. That is a great danger, to which I think a lot of conservatives fall prey: the people agree with me, therefore this is a decision for the people. Some things, like what marriage is, are not up to the people, any more than if the people started recognizing anything else that is contrary to fact.

    The liberals, unfortunately,control much of the media and the educational opportunities that Americans are exposed to. The people will think what the liberals think in a matter of a few years, if they don’t already. The average opponent of gay marriage is probably responding to a sizable “yuck” factor. And in the future, that “yuck” factor will be used to make opponents of gay marriage look like uneducated bigots.


  2. This is a semantic battle usually not worth fighting, but I am growing tired of “gay” and “homosexual” being used as a noun. That being said, I am aware that it can serve as an expedient shorthand in writing or talking about matters involving persons who experience same-sex attraction.

    By linguistic coups – and an important one, how we refer to people, places and things re-enforces a mindset – all folks who labor under the temptation to seek sexual gratification with persons of the same sex are set apart with these terms as though they are “a breed apart”. That simply is not the case – there is no qualitative difference between the man who struggles with the temptation to a disordered action with another man and who struggles with the temptation to a disordered action with a woman to whom he is not not allowed (by divine law) sexual interaction.

    I am 31, unmarried, and it is expected that in the living of my faith I will sleep alone (ok, the dogs jump on the bed) no matter whom I may be tempted to fantasize about. Now with the use of the term “gay” and “homosexual” an image has been painted that there is a class of person who is different – because the object of their temptation is different – who are deserving of the the right to act on them… But is that the case?

    Men with well ordered heterosexual attraction who wish to engage in polygamy or have mistresses don’t look for social acceptance and special rights for their pattern of life and lifestyle. Dare I suggest that a far larger group of people are being “discriminated against” by not allowing for “mistress rights”?

    Somewhere along the way the lie was propogated that folks who demonstrated special proclivities to a distinct type of non-genitive, non-marital, non-heterogenital sex acts were a classification of people who were deserving of recognition as an alternative group.

    The relentless onslaught of Hollywood and media image makers to portray non-heterogenital sexual relations as being a viable alternative or “second way” to heterogenital married life has been largely successful. More to the point, if the consensus that “straight” people are allowed to do “whatever is clever” in relation to their sex and sexuality – contracept, serial monogomy, divorce, non-genitive sex – folks who advocate all of this as OK for “the heterosexuals” are going to understandably not “get” why folks attracted to other non-genitive sex acts can’t “have their fun”.

    Marriage has been reduced to an institution where special rights (now free of being understood as intregal to the protection and promotion of children) are offered for property rights and financial benefit. If Bob can marry Suzy, divorce Suzy, marry Jennyy, divorce Jennyy, marry Anne, divorce Anne, and the whole time eschew procreation… The question arises, why can’t other people who see sexuality as an outlet of personal gratification wholly unrelated to fertility and procreation also engage in the same cycle?

    With these misplaced ideals about the nature of marriage being our social starting block… well save for the “yuck factor” most folks who believe these modern concepts about marriage are without a leg to stand on in opposing Bob marrying Rob. If marriage is just for joint benifits, home ownership and companionship (and sex is just recreation) really it isn’t long before “whatever is clever” deserves all the same rights.

    As Islam grows watch out – there is no reason now to oppose polygamy. And the Lebanese found out – polygamy leads to exponential growth and power.

    We are in for some hard times.


  3. Men with well ordered heterosexual attraction who wish to engage in polygamy or have mistresses don’t look for social acceptance and special rights for their pattern of life and lifestyle.

    Yet. Give it time.


  4. “Yet. Give it time.”

    After I sent it and looked at that, I thought the same thing.

    I do believe that in the next decade (maybe it will take two) a number of US-born Muslims are going to start demanding “freedom of religion” in the form of being allowed the quick divorces and multiple marriages their co-religionists in Islamic states have.

    After all, they will argue (I am sure!), if non-Muslims can marry as much as they want and have kids and divorce the woman, why can’t they marry four times without a divorce and have the women live with them rather than collect alimony and child support.

    At the rate we are going, what the hell is a judge going to say to that?


  5. Thank you for this post, Jeff. Your analysis of Sekulow’s hogwash is brilliant. Your main point with regard to him seems to be that he is not seeing this from the correct perspective: that neither the people, nor the legislature, nor the courts have the privilege of defining marriage. That we leave to God.


  6. Excellent points made by Daniel, Zach, A Simple Sinner, and my good friend Mike Garcia. It’s especially nice to see Paul Cella here again, a man I am always thanking for undeserved compliments!

    Our political system may well be doomed. The moral, cultural, and political disintegration of our country seems unstoppable. The voice of the Church and the Christian people are now so marginalized as to be virtually irrelevant. There is no “moral majority”, no real consensus among the American people about things that matter – and this remains true even on the regional level in most places. Though our political system may be doomed, we are utterly incapable of imagining what might take its place. Our efforts are reduced to postponing the inevitable collapse for just a little while longer.

    I’m going to vote for the Protect Marriage initiative in November, but if it passes I have no delusion that it will represent anything other than a temporary setback for the barbarian hordes who are storming the gates. I try to keep a little hope alive, just to have a reason to fight, but at present the situation looks dire …


  7. Thanks, Lydia – I caught the story earlier this afternoon. If the mothers don’t get their children back I may never set foot in Texas again. If they do get their children back, I’m going to buy a Stetson hat.


  8. I run so hot and cold on this one.

    Not that I am in any way shape or form a supporter of this re-definition of marriage movement, but…

    Well to put it into perspective – which set of neighbors would be more unsettling to most Americans:

    Rod & Tod the gay couple as committed to the double-income-no-kid (DINK) lifestyle: vacations, asset accumulation, his & his SUVs…

    Or Joe & Anne, Catholic couple, homeschoolers, parents of 6 with possibly more on the way?

    We have already lost this one. Given what we have let marriage and family life come to: cheap and easy divorces, multiple marriage, couples who reject and repudiate their (especially her) fertility. I marvel and shake my head that (1) Evangelicals feel threatened by the 1% as the REAL threat and (2) men who have sex with men are anxious to get in on this action. But hey, wedding planners and divorce lawyers gotta eat too!

    Again, I am not raging because I am in support of this foolishness, I am in mourning because we lost the very day the first Catholic priest publically repudiated and dissented against Humanae Vitae, 40 years ago this year.


  9. I just want to point out, however, that the judges lied when they said that this is the meaning of the California Constitution. That sort of lying should concern us, and I believe that it is a disgust with that sort of lying that lies behind critiques like Sekulow’s. Judges shouldn’t go around just making stuff up and then pretending they “found it” in some document they are pretending to interpret. The entire judiciary has been _rotted_ by this sort of garbage, and the teaching in our law schools that these documents are “living” and so change in meaning has given them the go-ahead to have absolutely zero integrity and just to make up whatever they want and say it’s now a brand-new constitutional right. I think it’s correct to be outraged about that, and I think it’s correct to be worried about the kind of power that gives to judges. We’ve seen what that power and that corruption and that lack of the integrity to tell the truth about the meaning of documents has done, time and time again. It’s certainly important to ask ourselves whether democracy is, in fact, going to support real marriage. But it’s also important to support the integrity of the judicial profession and to call them on their lack of it in cases like this.


  10. Yes, Lydia, you’re quite right about that. But that wasn’t Sekulow’s argument. Conservatives like Sekulow have already accepted a regime of dishonest interpretations (e.g., 14th amendment incorporation doctrine) and activist decisions as precedent, so they have to frame their arguments differently (and even more dishonestly as we have seen).

    The root problem is that all of our institutions – even our constitutions – have as their foundation an ideology of democracy in which nothing is sacred except the will of The People. Thus even a popular initiative to amend the state constitution is likely to end up, finally, being counter-productive. I don’t see a realistic way out of this mess. Any political system does rely to some degree on popular support (that was the wisdom of the old familial monarchies), but in this country there is no support for – or knowledge of, for that matter – any workable system other than what we have inherited. I’d like to think we can save our system through reforms, but those reforms would require a whole ‘nother set of propositions that have long been discarded. Will a democratic people vote to curtail democracy? Who is likely to vote to reduce their own influence? To what Authority will a democratic people agree to submit themselves … other than themselves?

    Another thesis is that there is nothing wrong with our system other than its flawed participants, whether they be voters or politicians or presidents or judges. I can entertain this idea, but have my doubts. The system itself presupposes that the population holds a steadfast belief in the ability of democracy to arrive at truth (or something close enough). That democratic belief, I think, is the crux of the problem. If we had a democratic system with an undemocratic people – that is, a people who acknowledged the same non-democratic Authority when it comes to ultimate questions – then democracy just might work.


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