"There can be no successful government without the intimate, instinctive coordination of the organs of life and action. This is not theory, but fact, and displays its force as fact, whatever theories may be thrown across its track. Living political constitutions must be Darwinian in structure and in practice. Society is a living organism and must obey the laws of life, not of mechanics; it must develop. All that progressives ask or desire is permission—in an era when 'development,' 'evolution,' is the scientific word—to interpret the Constitution according to the Darwinian principle; all they ask is recognition of the fact that a nation is a living thing and not a machine."

   - Woodrow Wilson

If the 51st State Were Muslim

There's little doubt in my mind that Obama's previous stance on gay "right to marry" (as was that of Bill Clinton who has also "come around") was calculated to increase his odds at winning the Presidency.  Even when my opinion of him was at its peak, I didn't doubt that Obama was more liberal than his moderate trappings.  The opinion of his VP (or that of his daughters) would not ordinarily change his mind in an election year.  So why would Obama take such a risky decision unless he felt that he had so little credibility in his finance-related policies that he had no choice than to stop pretending that he is a moderate and start crusading for his side of the culture war?

I think people generally have a right to live how they want to live when it isn't obviously causing harm.  How much control municipalities have over that right is something that is yet to be truly ironed out, since there is, and has been, different ideas about what is bad for the community.  But there is also the fundamental question of how much power a community (no, not a nation, a state perhaps, but not necessarily) has the right to decide how their children are raised, what they are exposed to.  There's a balance between freedom and democracy, between protecting the individual from the community and protecting the community from the individual.

A recent NY Times op-ed (5/9/2012) opined that marriage rights "are too precious and too fragile to be left up to" the democratic process.  The scope of people's inalienable rights are best decided by wise judges.  If the wisdom of the people is scary, I find much scarier the wisdom of judges basking in the warm light of their own enlightenment.  Liberals seem to like the most fundamental issues to be decided in the least democratic manner.  Look up Thomas Friedman's lament about our "one-party democracy" [sic] in which one political party is allowed to interfere with the plans of another.  (What a world!)  If I had a dollar for every liberal that praised an authoritarian goverment with an atrocious civil rights record, I think I'd be  rich.

Now, some of the same people that love Chavez and Castro, deplore DOMA as a civil rights violation. Hmm.  Here's where even many conservatives get it wrong: Many people think that DOMA is the federal government's lone foray into marriage rights. Wrong. While homosexuals can have a ceremony, call themselves married, wear rings, and announce their wedding without committing a crime, it isn't the same for the people on "Sister Wives," who never ask for or expect the privileges of the legally married and yet are potentially in trouble with the law for living as they do.  The "civil rights movement of our generation" would gladly redefine marriage in a way that would leave these people out in the cold.  They are, after all, "fundamentalist" religious people--not a demographic the Left is remotely interested in.  And most religious people, orthodox Mormons included, are not willing to fight for them.  The ACLU's official policy is pro-plural marriage, but this seems to be merely a plank for challenging the definition of marriage.

It is not a crime in most of the U.S. for a man to father children by several women simultaneously.  In Utah it has been a crime for a man to cohabit with multiple women or otherwise pretend that multiple women are his wives.  This has been true since Lincoln orchestrated the passing of an anti-polygamy law (that he promised Brigham Young not to enforce as long as the LDS would not make trouble in the Civil War), which also made it legal for the government to seize excessive riches from religious corporations in Utah.  Utah was coerced into enshrining anti-polygamy into state law as a condition for statehood, and there it remains enshrined.   I suspect that in Utah a man can father children by as many women as he can as long as he doesn't live with them. I suspect a man could be living with two male sexual partners and not be violating any law in Utah.  A man could probably be living with his legal female wife and their shared male lover (polyamory) and not be violating any law. No, I think it's only a man cohabiting with more than one woman that violates the laws that Utah was coerced into passing by the federal government.

Many equate gay marriage with the issue of interracial marriage.  After all, isn't Loving vs. Virginia a precedent for gay marriage?  There's already a federal ruling that it doesn't apply.  But that aside, I think that there are at least two fundamental differences between the two issues.  One is that gender, unlike "race," is not an arbitrary distinction.  Otherwise, men and women's restrooms are "separate but equal," and the fact that there are double standards on who can walk around barechested is an affront to the Constitution.  I think, in general, there is more physiological and neuropsychological difference between a brother and a sister than between genetically diverse people of the same gender.

The other fundamental difference is historical tradition.  Vastly different cultures have enshrined the idea of marriage as between a man and a woman.   It's not religiocentric or ethnocentric.  In Greco-Roman cultures where homosexual relationships were tolerated or even encouraged, there was one kind of marriage.  A read about an Indian man recently who was told by his mother that he could "f*** an alligator" for all she cared as long as he married a woman and had a family.  Modernism and feminism has deplored the historical tradition of marriage with little softening by postmodernism and little care for the history of the economics of households.  A new marriage for a new age.  (Polygamy, by comparison, is a historical and recurring flavor of marriage and was a part of the life of various heroes of Biblical tradition: Abraham the "father of our faith", Jacob/Israel, and David.)

Incidentally, I never understood those who opposed interracial relationships on supposedly Biblical grounds.  Moses had an Ethopian wife after his Midianite wife.  Boaz, the great-grandfather of David, had a Canaanite mother and a Moabite wife.  Joseph had an Egyptian wife. David offended God by stealing the Hittite's wife.  (God seemed to honor that marriage.)  Everybody was marrying everybody else. Semites marrying Hamites marrying Japhethites. All good. Biblical references supposedly against interracial marriage--pretty weak by comparison.

Back to gay marriage...  My opinion would probably not be considered conservative by many "paleoconservatives" in that I think that not just civil unions or plural marriage but cohabitors in general and non-cohabiting betrothals should count for certain rights that are applicable to "choice of law" rules across state boundaries. A state would have a right to not recognize a second marriage made in a state where polygamy is legal, but should still be subject to certain contractual obligations (regarding inheritance, for example) implied by the civil contract made in the state of origin.  Too messy?  We already somehow manage something like it.  Why should a husband be allowed a hospital visit but not a fiance?  Why should someone be admitted just because he claims to be a blood relative while a domestic partner is not allowed even if the patient specifically vouches for him/her?  A state could pass a law from which a person could have a notarized statement that is recognized in a hospital for visitation rights.

But I disagree with Obama's regulatory czar Cass Sunstein that marriage as a legal concept should be abolished.  Marriage law has its basis in English common law as it is the basis for federal law and state law for almost all of the states.  Common law is assumed and referred to by our Constitution.  Marriage is a civil contract which is entered by a husband and a wife in which the two parties have separate responsibilities and different contractual expectations.  Which role you can assume is determined completely by your gender.  Statutory law can modify it, adjust it, and has done so over the years, but not redefine it.  

Here's a thought experiment I often turn to:  Imagine an Islamic country like Iraq, as though Maryland was currently as Muslim as it was once Catholic.  Let's call it Mohammedland, instead of Maryland--or Americastan, if you prefer.  Let's say that we had a national interest in setting up a democratic government with free elections, that the people of this land cry out to us to give them democracy.  Let's say further that Mohammedland eventually gets adopted as a state after 10 successful years as a democratic republic. For five years, they've lived without oppression.  But they have a proud Muslim tradition.  Their Department of Justice has words from the Koran prominently displayed on the building with a picture of the Dome of the Rock where Mohammed was taken to Heaven.

Their legislature starts out with a call to prayer, and there is an area outside where legislators may voluntarily pray toward Mecca if they are Muslim.  No one is required to be Muslim to serve in the legislature, and the one non-Muslim legislator from a county with many Catholics, Jews and Armenian Orthodox, well, he observes the prayer moments in respectful silence. They have a public school system where the kids learn scripture from the Quran as part of their cultural history.  There's no religious persecution but Islam permeates the culture and the civil life. They talk about evolution in school but they also talk about criticisms of evolutionary theories in school (they even refer students to books about intelligent design they keep in their libraries); 94% of the people believe in special creation after all.  They recognize polygamy but not same-sex marriage.  Homosexuality is not a crime as it is in many Muslim countries, but the Americastani constitution precludes homosexual marriage.  The government considers homosexuals as first-class citizens.  and allows them to live as they will, but 97% of the population considers it a terrible affront to their culture and society to recognize a homosexual partnership as a social institution.

After 10 years of their democratic experiment, they enter into statehood with its privileges, thinking naively that the Constitution really does reserve to the states powers not specifically granted to the federal government.  They don't realize that their educational curricula will be cleansed of Islam (and anything remotely favoring theism) for the benefit of their secular and Judaeo-Christian minorities that might be offended by references to Mohammed.  Criticism of of the Modern Synthesis of evolutionary theory will be outlawed. The words of the Quran will be scoured from their Dept. of Justice; the Dome of the Rock will be gone.  An atheist will sue their state over the existence of the dedicated prayer area in the public forum of the legislature, and he will win in the Supreme Court.  There will be a private ecumenical chapel instead. Their children will be taught liberal sex ed that covers safe anal sex. Their children will get abortions without their permission or knowledge. They'll be read books promoting gay marriage, and attend state universities where liberal professors will tell them to question authority as long as the authority is parental or Muslim. Their tax dollars will be used to not merely prepare their children to engage the world on a new intellectual level but to indoctrinate their children against their culture.

Now if we had set up that kind of system in Iraq, there would be no shortage of progressive voices crying out against our arrogant overriding of their culture, intrusion into their sovereignty, redefinition of their culture.  The relativists would all be standing up for Iraq because it is a sovereign state, unknowing (or conveniently forgetting) that our states once had sovereignty.  The Middle East rightly fears Westernization and fears democracy, because they've seen how Europe and the U.S. has redefined "democracy" as secularization.  We've given them firsthand evidence of how you can't forbid Congress from respecting a mode of worship without forcing secularization on a culture.  So why should we be suprised if they repeatedly bomb schools we set up in Afghanistan even if they are being set up by a President with a Arab name?  They've seen what liberals mean by "democracy."  In a "democracy," even a representative one, even in a republic, some things are "too fragile and precious" for goverment by the people; they are instead determined by an elite group of unelected academics. Welcome to Utopia, our Muslim friends. Resistance is futile.

In California, the Prop 8 episode was interesting.  The homosexual comunity was "betrayed" by the African Americans and Catholic Latinos that didn't share the "progressive" view of marriage. (Some liberal commentators noted ironically that the black voter turnout for Obama might have kept Prop 8 from failing.) They vilified the Mormons instead though, which accounts for a relatively tiny minority out here.  Gay rights activists said the facts were deliberately skewed about the effect of the court ruling on marriage.  People were "crazy" to think that their children would be exposed to alternative kinds of marriage.  Is it crazy?  Is it crazy to think that once a state redefines marriage, all of a sudden a special interest group will point out that the curriculum is "hetero-centric" and unfairly biased toward heterosexual marriage as uniquely normative?  (I smell hate crime.) That homophobia will be seen as an epidemic problem that can only be cured by exposing kids at a early age to images of happy homosexual marriage and scientific(?) studies that all lifestyle is nature not nurture?  As one left-center person put it, "They're lying about it not affecting education--it would have to have an effect--but so what?"

Does anyone really think that if a law had been proposed granting greater status to civil unions and domestic partnerships (those longed for hospital visitation rights, for example) that it wouldn't have passed?  After Prop 8, Orson Scott Card wrote about Californian Mormons who had gay friends that would no longer speak to them because they had voted for and endorsed Prop 8, even though their Mormon views had not changed and .  Concerning Prop 8, since the resulting riot, most people probably follow a "don't ask, don't tell" policy. (Unless they voted on the side of liberty, the enlightened choice favored by the non-Hispanic white voters of California. Don't give me that look; it's the liberals that are constantly reminding us what category we belong in.)

I don't know. On the one hand, I've disliked the whole concept of being licensed to marry. Do I need the state's say-so? For matters of custody though and "community property", there may be very important rules for distinguishing between living together and having a semi-permanent union. And there is also a community's ability to control what their kids hear and how they're raised, and what impressions they get in their mandatory attendance at school. I think it was disingenuous in the Prop 8 that a marraige redefinition wouldn't affect what kids are told in school. The ACLU already used a kid's harrassment to wrangle a no-opt-out same-sex training. What will it be like when all of a sudden the curriculum unfairly portrays heterosexual marriage as the norm? One kid's pain is another progressive's golden opportunity. Many people don't care what their kids see in school; and the parents that do, well, their opinion really doesn't matter.

I read one blog that made an argument that DOMA was unnecessary BS because "choice of law" already kept one state from overruling another state's laws. All DOMA seems to do is ensure that a state can't be coerced into acknowledging marriage laws that aren't their own. This is the part that is hated most, and yet it is the one that does most to protect state sovereignty. The part of DOMA about federal acknowledgement also protects states from "end runs" around state law. So it ensures that states can continue dictating their own policy. Since DOMA there have been suits where people have married in one state and tried to get it recognized in another--citing the very "full faith and credit" clause that people were "ridiculous" to worry about. In one such suit is was specifically recognized that there are thousands of federal laws referring to marriage, and DOMA was meant to keep them from being co-opted for relationships the people's representatives never intended the laws to apply to, and to keep one state from dictating national policy.

So I think that the individual has a vested interest in his/her personal liberty to have relationships without society's "permission", but I also think that a state and a community have a vested interest in how that relationship is recognized on a social level. I think almost any proposition to grant civil unions more privileges would have gone over here in CA. I don't think progressives want that. I think the hard left wants the next generation to be malleable and be shaped into the utopian society, free of the ignorant superstitions of their parents. It's not enough that they own the entertainment world, but they want the schools as well.
Now, as I understand it, there is also common law with regard to marriage. The Constitution, federal law, and most states' law is based on English common law. Marriage is a civil binding agreement with two parties: a husband and a wife. The two roles have different responsibilities and liabilities, and you don't get to choose which role. (Feminism would denounce it as sexism, but then feminism has been fine with certain inequalities.) That is the basis and precedent of the social law, subject to modification (but not total redefinition) by democratic statutory revision.

I think a provision could be made for protecting the economic and personal interests of domestic partners, polygamists, civil unions, common law marriages across state lines without affecting a state's protection against recognizing a marital status that it considers antithetical to its culture. But it has to be something that the states can live with. Something that doesn't involve North Carolina being forced to give their kids "sensitivity training."