Most sensible people, including most businessmen, have a uniform reaction to moral and social controversies, like those over abortion and gay rights: avoidance. These matters are left to those who a sometimes reasonable Maryland politician once described as “the crazies and the half-crazies.” Discussions with such people are about as fruitful as discussions with those other modern purveyors of “identity politics,” fanatical nationalists of the stripe of Milosevic and Tudjman. But they cannot safely be left to have their way.
The controversies are usually brought to flash-point by elderly judges, determined, against the evidence, to demonstrate that they are still “with it,” abetted by hyperbolic dissents from some of their so-called conservative colleagues. The issues attract a traveling circus of televangelists, “civil libertarians,” media maidens, authors of political fundraising letters, picketers, recidivist signers of manifestoes in the New York Times, and professors of law whose published writings are limited to efforts to expand or contract the Fourteenth Amendment.
The gay marriage controversy was instigated by activist judges in Hawaii and Vermont who detected in their state constitutions rights undreamed of by Queen Liliokoulani and Ethan Allen, aided, in the Romer and Lawrence cases by opinions of a Supreme Court justice once unkindly described as an "ambitious middleweight." New peaks of self-righteousness were reached under the guidance of a Massachusetts judge, a product of the tolerant climate of South Africa in the apartheid era, who thought that a 4-3 decision on this issue was just what the nation needed in a presidential election year.
General De Gaulle, who grew up in a time when the American judiciary was dominated by such judges as Holmes and Hand, Brandeis and Cardozo, Frankfurter and Jackson, observed in the last volume of his memoirs that one of the blessings of the American Constitution was that divisive moral and social issues were determined by the states. "The central government and Congress normally confine themselves to larger matters: foreign policy, civic rights and duties, defense, currency, overall taxes, and tariffs." There was danger that the issues in the 2004 national elections would be confined to such subjects, but Justice Margaret Marshall and her colleagues have now removed it by raising a threat that the 'marriages' made possible by their new decision will be carried into other states. No longer can a De Gaulle say that America "has only two parties, which are opposed on none of the fundamental issues—nationhood, moral law, institutions, defense, freedom, ownership." Rather, it is now on its way to being converted into pre-De Gaulle France, "in which everything, in the political, social, moral, religious and national spheres, is always totally in dispute, a country whose people are in the habit of splitting into irreconcilable factions."
What difference does gay marriage make? Marriage, some say, has already been debased by the antics of such as Britney Spears. There is, however, nothing new about this; Adam Smith observed that "in every civilized society . . . there have always been two different schemes or systems of morality current at the same time. . . . The vices of levity are always ruinous to the common people . . . the disorder and extravagance of several years, on the contrary, will not always ruin a man of fashion"—or a woman either.
The most learned modern commentator on marriage law, the late Max Rheinstein, lived to see the “death of marriage” phenomenon in Western Europe, where cohabitation is driven by marriage penalties in the tax system. Marriage, in his view, could not be preserved by stricter divorce laws, only by education for family life and by relieving, through family allowances, economic pressure on the married. The wholesale erosion of personal exemptions during the Johnson-Nixon-Carter inflation and attendant increases in payroll taxation in this view did more to enhance the divorce rate than the values and antics of Hollywood. If the effect of gay rights is to further dilute the tax benefits of married couples, this problem will be compounded.
The Defense of Marriage Act, if upheld and enforced, as the past writings of Justices Brandeis and Jackson about the Full Faith and Credit Clause suggest it should be, will prevent this from happening in the federal tax and benefit system; the California civil unions legislation likewise carefully excluded any effect on the tax laws. Other states should be left free to do the same. Most married couples are either saving to have children, are supporting children, or are financially depleted as a result of doing so. The Constitution does not preclude legislation which addresses the typical rather than the eccentric case; it neither enacts Herbert Spencer's Social Statistics nor invalidates John Stuart Mill's utilitarian principle: the greatest good for the greatest number.
Those interested in defending marriage would do well to expand and focus the new family tax credit by concentrating its benefits on preschool children to give at least one parent the option to stay home during what the psychiatrist Selma Fraiburg called “the magic years,” a measure adopted in Norway and Finland and being promoted by Britain's Conservatives. This is no part of either the gay rights or feminist agenda, both largely constructed by non-parents.
The enthusiasm for publicly supported daycare centers and for taxing mothers of young children into the labor force imposes costs which have not yet been counted by those who should be concerned with the "preservation of personality" that is privacy's aim. "Parents, as a rule, are fond of their children, and do not regard them merely as material for political schemes," Bertrand Russell wrote in 1929. "The State cannot be expected to have this attitude."
The Constitution, Justice Holmes observed, "was made for people of different views." It should not be construed or amended either to impose gay rights on states other than those adopting them by legislation, or to preclude the states from enacting laws creating them for their own citizens, and from altering legislation that proves unwise. Justice Marshall, unlike the equally abusive Rose Bird, cannot be ejected by the electorate, but the powers she has usurped can be reclaimed by the legislature through state constitutional amendment. Her pronouncement that "separate usually means unequal" would preclude all legislative classification; it is good communist doctrine, but is strange language for a court in a liberal democracy.
Those who, in the late Philip Kurland's words, "care not who makes the laws, nor how, so long as the laws are to their liking" render no service to their own rights or anyone else's. They would replicate on American soil the politics of France, Spain, and Austria in the 1930s. Don't say "it can't happen here."
Opinions expressed do not necessarily reflect those of the 91ÆÞÓÑ Institute.