I Smell Burning Straw

State’s rights candidate? Not Rick Perry
MARK BROWN mbrown@suntimes.com August 27, 2011 12:10AM

Updated: August 28, 2011 2:27AM

Let’s all take our hats off (cowboy hats preferably) to Texas Gov. Rick Perry for his decision Friday to pledge his fealty to the folks who think the sky is going to fall if gay people are allowed to get married.

By taking the National Organization for Marriage pledge to support a federal constitutional amendment against gay marriage, Perry has erased any ambiguity about his attitude toward same-sex couples.

He’s agin ’em, by golly, and if he’s elected the next president of the United States, they’re not going to be allowed to become the scourge of American family values the way they have in places such as Iowa, Vermont, New York and right here in Illinois, where we are to believe the very fabric of society has been rent asunder by recent legal changes.

Perry is to be commended for clarifying his position on this matter because he’d previously tried to have it both ways: finessing his conservative personal views with a state’s rights argument that might have given some people the mistaken impression he was open-minded on the subject.

That got started in July, back when Perry was still readying the presidential run he launched earlier this month, after he told an audience of Republican donors in Aspen, Colo.: “Our friends in New York six weeks ago passed a statute that said marriage can be between two people of the same sex. And you know what? That’s New York, and that’s their business, and that’s fine with me. That is their call. If you believe in the 10th Amendment, stay out of their business.”

Perry was trying to indicate he’d leave it up to the residents of individual states to decide the gay marriage issue, while also making it clear that he was personally opposed. (Perry also opposes civil unions.)

This immediately got Perry into all kinds of trouble with conservative Republicans who thought they detected some waffling from his previous views, which put him at a disadvantage against other leading GOP presidential candidates who have been falling all over themselves to express their willingness to keep those gays in their place.

Now, just a month later, Perry is removing all doubt by signing on to an effort that would bar individual states from making their own decision. The pledge says he would “support sending a federal constitutional provision that would define marriage as the union of one man and one woman to the states for ratification.” If ratified, of course, that would make it the law of the land.

Clearly, that puts him smack dab in the middle of the business of the people of New York and Iowa and Illinois, state’s rights be damned. To borrow Perry’s line, that’s fine by me, because I haven’t forgotten another Texas governor who ran for president while selling people a lot of hooey about being a compassionate conservative, and I’d hate to see people fooled again.

As best as I can understand it, though as far as I can tell Perry did not explain himself, he justifies the apparent conflict in his stated positions on the basis that he is concerned the federal judiciary will soon make gay marriage legal — overriding the will of the states that outlaw it.

If I’ve got this right then, it’s better in Perry’s view to trample the rights of those living in states that allow gay marriage than to trample the rights of those living in states that do not.

Michele Bachmann, Mitt Romney and Rick Santorum had previously signed the pledge, which also commits the candidates to nominating only federal judges and Supreme Court justices who are committed to blocking gay marriage.

Of all the Republican candidates, I’m most intrigued by Perry, as I know many Americans are. We’d all love for somebody to bring this country out of its economic funk, and many of us want to know if there’s anything in the Texas example that could help the rest of us and whether he’s the guy to do it.

Economic issues may very well trump social issues in the next election, and President Barack Obama certainly hasn’t been any profile in courage on gay marriage either with his own ever-evolving views.

But I’ve never been convinced any president of the United States can do a whole lot to turn around the economy, while I’m absolutely certain the right president can move this country forward on social issues and the wrong one can set it back for decades. I don’t intend to go back quietly.

Dear Mr. Brown,

Why do you still have a column? Why is the Sun-Times still in business? These are mysteries I cannot answer — but I can address the ridiculous attempt at argument in your latest column. To begin, those of us opposed to redefining the institution of marriage have our reasons to oppose this redefinition, but I don’t think they include the concern that “the sky is going to fall” or the “the very fabric of society” will be “rent asunder”. I think you are closer to the mark when you say that we are concerned that “same-sex couples” and their demand for “gay marriage” is a “scourge of American family values”, although I’m not sure the adjective “American” does any work in that phrase — as our current Pope (you are Catholic aren’t you?) has said in his famous letter known as “CONSIDERATIONS REGARDING PROPOSALS TO GIVE LEGAL RECOGNITION TO UNIONS BETWEEN HOMOSEXUAL PERSONS” prepared back when he was the Prefect of the Congregation of the Doctrine of the Faith:

2. The Church’s teaching on marriage and on the complementarity of the sexes reiterates a truth that is evident to right reason and recognized as such by all the major cultures of the world. Marriage is not just any relationship between human beings. It was established by the Creator with its own nature, essential properties and purpose.(3) No ideology can erase from the human spirit the certainty that marriage exists solely between a man and a woman, who by mutual personal gift, proper and exclusive to themselves, tend toward the communion of their persons. In this way, they mutually perfect each other, in order to cooperate with God in the procreation and upbringing of new human lives.

3. The natural truth about marriage was confirmed by the Revelation contained in the biblical accounts of creation, an expression also of the original human wisdom, in which the voice of nature itself is heard. There are three fundamental elements of the Creator’s plan for marriage, as narrated in the Book of Genesis.

In the first place, man, the image of God, was created “male and female” (Gen 1:27). Men and women are equal as persons and complementary as male and female. Sexuality is something that pertains to the physical-biological realm and has also been raised to a new level – the personal level – where nature and spirit are united.

Marriage is instituted by the Creator as a form of life in which a communion of persons is realized involving the use of the sexual faculty. “That is why a man leaves his father and mother and clings to his wife and they become one flesh” (Gen 2:24).

Third, God has willed to give the union of man and woman a special participation in his work of creation. Thus, he blessed the man and the woman with the words “Be fruitful and multiply” (Gen 1:28). Therefore, in the Creator’s plan, sexual complementarity and fruitfulness belong to the very nature of marriage.

Furthermore, the marital union of man and woman has been elevated by Christ to the dignity of a sacrament. The Church teaches that Christian marriage is an efficacious sign of the covenant between Christ and the Church (cf. Eph 5:32). This Christian meaning of marriage, far from diminishing the profoundly human value of the marital union between man and woman, confirms and strengthens it (cf. Mt 19:3-12; Mk 10:6-9).

4. There are absolutely no grounds for considering homosexual unions to be in any way similar or even remotely analogous to God’s plan for marriage and family. Marriage is holy, while homosexual acts go against the natural moral law. Homosexual acts “close the sexual act to the gift of life. They do not proceed from a genuine affective and sexual complementarity. Under no circumstances can they be approved”.(4)

Sacred Scripture condemns homosexual acts “as a serious depravity… (cf. Rom 1:24-27; 1 Cor 6:10; 1 Tim 1:10). This judgment of Scripture does not of course permit us to conclude that all those who suffer from this anomaly are personally responsible for it, but it does attest to the fact that homosexual acts are intrinsically disordered”.(5) This same moral judgment is found in many Christian writers of the first centuries(6) and is unanimously accepted by Catholic Tradition.

Nonetheless, according to the teaching of the Church, men and women with homosexual tendencies “must be accepted with respect, compassion and sensitivity. Every sign of unjust discrimination in their regard should be avoided”.(7) They are called, like other Christians, to live the virtue of chastity.(8) The homosexual inclination is however “objectively disordered”(9) and homosexual practices are “sins gravely contrary to chastity”.(10)

[…]

6. To understand why it is necessary to oppose legal recognition of homosexual unions, ethical considerations of different orders need to be taken into consideration.

From the order of right reason

The scope of the civil law is certainly more limited than that of the moral law,(11) but civil law cannot contradict right reason without losing its binding force on conscience.(12) Every humanly-created law is legitimate insofar as it is consistent with the natural moral law, recognized by right reason, and insofar as it respects the inalienable rights of every person.(13) Laws in favour of homosexual unions are contrary to right reason because they confer legal guarantees, analogous to those granted to marriage, to unions between persons of the same sex. Given the values at stake in this question, the State could not grant legal standing to such unions without failing in its duty to promote and defend marriage as an institution essential to the common good.

It might be asked how a law can be contrary to the common good if it does not impose any particular kind of behaviour, but simply gives legal recognition to a de facto reality which does not seem to cause injustice to anyone. In this area, one needs first to reflect on the difference between homosexual behaviour as a private phenomenon and the same behaviour as a relationship in society, foreseen and approved by the law, to the point where it becomes one of the institutions in the legal structure. This second phenomenon is not only more serious, but also assumes a more wide-reaching and profound influence, and would result in changes to the entire organization of society, contrary to the common good. Civil laws are structuring principles of man’s life in society, for good or for ill. They “play a very important and sometimes decisive role in influencing patterns of thought and behaviour”.(14) Lifestyles and the underlying presuppositions these express not only externally shape the life of society, but also tend to modify the younger generation’s perception and evaluation of forms of behaviour. Legal recognition of homosexual unions would obscure certain basic moral values and cause a devaluation of the institution of marriage.

From the biological and anthropological order

7. Homosexual unions are totally lacking in the biological and anthropological elements of marriage and family which would be the basis, on the level of reason, for granting them legal recognition. Such unions are not able to contribute in a proper way to the procreation and survival of the human race. The possibility of using recently discovered methods of artificial reproduction, beyond involv- ing a grave lack of respect for human dignity,(15) does nothing to alter this inadequacy.

Homosexual unions are also totally lacking in the conjugal dimension, which represents the human and ordered form of sexuality. Sexual relations are human when and insofar as they express and promote the mutual assistance of the sexes in marriage and are open to the transmission of new life.

As experience has shown, the absence of sexual complementarity in these unions creates obstacles in the normal development of children who would be placed in the care of such persons. They would be deprived of the experience of either fatherhood or motherhood. Allowing children to be adopted by persons living in such unions would actually mean doing violence to these children, in the sense that their condition of dependency would be used to place them in an environment that is not conducive to their full human development. This is gravely immoral and in open contradiction to the principle, recognized also in the United Nations Convention on the Rights of the Child, that the best interests of the child, as the weaker and more vulnerable party, are to be the paramount consideration in every case.

From the social order

8. Society owes its continued survival to the family, founded on marriage. The inevitable consequence of legal recognition of homosexual unions would be the redefinition of marriage, which would become, in its legal status, an institution devoid of essential reference to factors linked to heterosexuality; for example, procreation and raising children. If, from the legal standpoint, marriage between a man and a woman were to be considered just one possible form of marriage, the concept of marriage would undergo a radical transformation, with grave detriment to the common good. By putting homosexual unions on a legal plane analogous to that of marriage and the family, the State acts arbitrarily and in contradiction with its duties.

The principles of respect and non-discrimination cannot be invoked to support legal recognition of homosexual unions. Differentiating between persons or refusing social recognition or benefits is unacceptable only when it is contrary to justice.(16) The denial of the social and legal status of marriage to forms of cohabitation that are not and cannot be marital is not opposed to justice; on the contrary, justice requires it.

Nor can the principle of the proper autonomy of the individual be reasonably invoked. It is one thing to maintain that individual citizens may freely engage in those activities that interest them and that this falls within the common civil right to freedom; it is something quite different to hold that activities which do not represent a significant or positive contribution to the development of the human person in society can receive specific and categorical legal recognition by the State. Not even in a remote analogous sense do homosexual unions fulfil the purpose for which marriage and family deserve specific categorical recognition. On the contrary, there are good reasons for holding that such unions are harmful to the proper development of human society, especially if their impact on society were to increase.

From the legal order

9. Because married couples ensure the succession of generations and are therefore eminently within the public interest, civil law grants them institutional recognition. Homosexual unions, on the other hand, do not need specific attention from the legal standpoint since they do not exercise this function for the common good.

Nor is the argument valid according to which legal recognition of homosexual unions is necessary to avoid situations in which cohabiting homosexual persons, simply because they live together, might be deprived of real recognition of their rights as persons and citizens. In reality, they can always make use of the provisions of law – like all citizens from the standpoint of their private autonomy – to protect their rights in matters of common interest. It would be gravely unjust to sacrifice the common good and just laws on the family in order to protect personal goods that can and must be guaranteed in ways that do not harm the body of society.(17)

I know this is a lot to absorb, but hopefully you have a better understanding of why someone like me is opposed to changing the definition of marriage after reading then Cardinal Ratzinger’s argument. There are other arguments, of course, made by philosophers and law scholars — but I suspect you know that and just thought it would be cute to portray opponents of redefining marriage as “bigots” or “rubes” or somehow not as sophisticated as someone like Mark Brown.

As for the broader, more interesting issue of why Perry is now backtracking on his earlier remarks, I don’t really care although his initial comments were quite frankly, stupid. The marriage issue, thanks to goofy judges, is indeed becoming federalized, and therefore we need a Constitutional amendment to protect the institution everywhere as my friend Lydia explained in an earlier blog post over at W4:

Now, this is an incredibly stupid remark. Normally when one makes a comment in the imperative mood, directed to a presumed political audience, we can take it that one is making some sort of political allusion to some present issue. One would therefore infer from Perry’s remark that conservatives are somehow urging us to do something contrary to the 10th amendment in the homosexual “marriage” debate and that Perry is disagreeing with them about this policy. Right?

Except that there is no such policy. There is nothing that conservatives are urging anyone to do that the most ardent 10th amendment hawk could object to on 10th amendment grounds. Nothing. Nada. Zero. DOMA isn’t contrary to the 10th amendment. The attempt to pass a constitutional amendment defining marriage as being between one man and one woman, obviously, is not contrary to the 10th amendment.

So what the deuce was Perry talking about? What was he urging conservatives to do or not to do in order to “stay out of [New York’s] business”?

I doubt that he knew. It just sounded like a great line. To him or to somebody. Wow, what a gallant defender you are of states’ rights. What integrity. What courage. What populism. “Stay out of their business.” That’s tellin’ ’em, Gov. Perry.

Well, of course, there was quite a storm after Perry’s remarks, and political opponents took advantage of them, so now he back-pedals. Perry resoundingly tells us that he is a strong defender of a marriage protection amendment. Now, Gov. Perry, that’s great and all, and of course it isn’t against the 10th amendment. But, unless you’re still really ignorant, perhaps you realize that such an amendment would mean that New York’s recognition of homosexuals as “married” would be nullified, right? You do know that, right? So, defenders of homosexual “marriage” presumably wouldn’t think that an attempt to pass such an amendment counts as “staying out of New York’s business.” Hmmm.

In his attempt to save face, Perry makes the perfectly correct point that the rights of states are recognized by the amendment process itself. Quite right. How did you come to sound like you were so confused on that in your original remarks, Governor? More, he says that his original comment was merely a recognition of the present “state of law.” But why make such a statement in order to call attention to the present “state of law”? Why express such a recognition at all? It’s not as though conservatives are urging that federal marshals go out right now and arrest justices of the peace in New York for issuing marriage licenses to homosexual couples!

Let’s face it, “If you believe in the 10th amendment, stay out of their business” just does not sound like, “Unfortunately, we do not yet have a federal marriage amendment, and therefore what the legislators of New York have done is presently legal. This only underscores the urgency of passing a federal marriage amendment.” No. Somehow, those just don’t sound the same atall.

Of course, the mantra of states’ rights has been a commonplace as a pseudo-argument against a federal marriage amendment (e.g., John Kerry used this argument), which Perry should have known.

So let’s recap shall we? First you mocked conservatives for defending the traditional definition of marriage and presented a bunch of straw man arguments as if they repesented my side’s case, then you mocked Perry’s flip-flop on state’s rights (which is O.K.) but you don’t seem to understand how the 10th Amendment works or why a Constitutional amendment is just fine with us state’s rights fans. In short, as I said earlier, your column and your ‘arguments’ are ridiculous — please try harder next time.

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