Ideas have consequences

by Roger Koppl 

Last month the Los Angeles Times reported, “California Atty. Gen. Jerry Brown asked the state Supreme Court on Friday to invalidate the voter-approved ban on gay marriage.”  Brown’s brief argues that the states’ constitution protects liberty and privacy as “inalienable” rights, the courts have protected gay marriage under those constitutional principles, and the citizens cannot overturn such inalienable rights by majority vote.  “Voters are allowed to amend other parts of the Constitution by majority vote, but to use the ballot box to take away an ‘inalienable’ right would establish a ‘tyranny of the majority,’ which the Constitution was designed, in part, to prevent, he wrote.”  He was talking about California’s constitution, but he appealed to principles that were embodied in the founding the documents of the US, including  the Declaration of Independence, the Federalist Papers, and the U.S. Constitution.

The U.S. Constitution did more than erect some formal governance structures.  It  embedded the ideal of ordered liberty in our political culture.  That ideal has been trampled on by the Republicans only to be picked up, dusted off, and put to good use by the Democrats.  The principles of liberalism still have an honored place in our political system.  I hope we can build on them to dismantle some of the structures of tyranny erected under Bush.

19 thoughts on “Ideas have consequences

  1. Like many out-of-staters who gave the Prop. 8 campaign minimal attention, thinking the ballot measure would be defeated, I was shocked to find out how significant LDS contributions were in the outcome. I also feel that the opponents of Prop. 8 have unfairly been characterized as “meanies” for the way they responded to the role of the Mormon Church.

    At the same time, I think a lot of Mormons who gave to Yes on 8 do not truly understand the hurt they have caused. Therefore, I decided to do something in my Texas university town, far away the fray in California, but close enough to have been affected by the struggle.

    I researched local contributions to the ballot measure, and was surprised to learn that two two academics at Texas A&M had donated thousands to quash same-sex marriage. I thought they shouldn’t escape unnoticed–not in some desire for vengeance–but to let them know how they affected other locals for whom the chance to be legally married meant a lot.

    Thus, my first in a series of blog posts on the subject:

    If you like what I wrote, or even if you didn’t, please comment on the blog, as I probably won’t be back here to read any response you leave. And stay tuned. Follow-up posts are coming.

  2. Roger,

    Do you really think this was a partisan thing? Didn’t the Democrats sweep in with a mandate in 2006, and then roll over and die on wiretapping, Iraq funding, etc.? Do you think the Obama Administration is going to overturn the Patriot Act?

    I would love to be proven wrong, but I don’t think they will do any of that. They might close Gitmo as a largely symbolic gesture, but even there I will believe it when I see it.

  3. Hi Bob,

    I’m not that optimistic about the Dems either. I’m hopeful, but that optimistic. That why I said “I hope we can build on” the ideal of ordered liberty. It was a hope and it depends on us. Voting in the Dems probably helped. As you are suggesting, however, that goes only so far.

    The Founders left us with arguments, principles, rhetorical tools. These instruments are sitting around waiting for someone to pick them up and use them. And we’re seeing it happen. Just now it’s the Dems who have more occasion to use them. I think Naomi Wolf is another example. She is distinctly “left,” but went back to the Founders to work out her argument on “The End of America.”

  4. More often than not, people fall back on the founders when they see the founders supporting them. Every other time, we have a “living” document.

  5. Dr. Koppl, I wonder if you wouldn’t consider the policy of completely eliminating the government’s involvement in marriage? That is, any tax or legal statuses currently associated with “marriage” would be changed to reflect some other kind of “union,” and the administration of the “sacred” institution of marriage would be left to those cultural groups to whom it is important. That way, we wouldn’t have to choose between State-sanctioned discrimination and offending groups to whom the word “marriage” has a special significance which is incompatible with its liberalization.

  6. I am all for dismantling the structure of tyranny erected under Bushler, but come on, “ordered liberty” is like jumbo shrimp, except no jumbo shrimp ever stole any property or killed anyone.
    And as for the “tyranny of the majority,” that ignores the real world of the State, in which bad things happen, not because of a majority, whether it’s a two-thirds “majority” of 435 Distinguished (junior) Members, or a two-thirds “majority” of 100 Distinguished (senior) Members, but because of a tiny, tiny minority, like a few hundred DM’s out of about 300 million people.
    Have you read the Constitution? Skip the dross and go directly to Art. 1, section 8, which is a to do list for the Big Kahuna State, a recipe for monopolies (patents and copyrights), theft (including inflation), tyranny, and a statist smackdown of the economy.
    May I suggest reading Spooner’s “No Treason: The Constitution of No Authority” to understand what the Constitution is really about?

  7. Hi Danny,

    I like the purpose of your blog. Nice! I’m afraid I don’t I see things your way on marriage, however. I’m for gay marriage not gay something-we’re-bound-and-determined-not-to-call-marriage. I think if we’re going to be fair and if we’re going to eliminate any state-sanctioned taint on homosexuality, then we should allow gay marriage. Besides, the legal system knows how to deal with marriage. With marriage, we know the rules of joint property, decisions rights, and so on. With some newly created form of union (applying to same-sex and cross-sex unions), wouldn’t we introduce legal uncertainty?

    Hi Bill,

    Okay, so how do you really feel? 🙂 The term “ordered liberty” has an honored and important place in common law. Although I don’t recall whether he used the term, it is what Hume’s History was all about. Tocqueville’s worries about the “tyranny of the majority” were well placed and have been repeated often for a reason. I suppose it’s fine to feel moral outrage at the sins of the state, but I still think the Founders’ work, Constitution included, has been a great bulwark of liberty in this country. We are, of course, well short of perfection, but liberty is a living breathing ideas here in spite of all transgressions and we have the Founders to thank for it.

  8. Thanks! Believe me when I say that I think it’s despicable that we haven’t yet reached a point as a society where denying marriage to homosexuals is as taboo as denying marriage to mixed-race or mixed-creed couples. My mom is gay, and she’s lived happily with her partner for years; the idea that they’re legally forbidden to marry is ridiculous. That being said, I don’t think that it would be right for the government to openly proclaim that gay marriage is okay, just like I don’t think it’s okay for the government to openly proclaim that it’s not okay. I just think marriage should have nothing to do with the government.

    To a lot of people, it’s a “sacred” institution, and that makes things tricky. For a parallel example, many orthodox Jews do not accept the legitimacy of the institution of giving girls a Bat Mitzvah, and so their organizations don’t grant or recognize them. Other Jewish groups, though, have embraced the idea that Jewish girls should be celebrated in their journey into adulthood in the same way as boys, and so they do have Bat Mitzvahs. I think it’s clear that the government has no right to step in and say whose institutions are right and whose are wrong. And just like it would be unacceptable for the government to license and regulate Bar Mitzvahs in a way that would necessarily be contrary to the wishes of some Jewish sects, I think it’s unacceptable for the government to license and regulate marriages.

    It makes sense to me that we would want to maintain certain legal institutions that are traditionally tied with marriage, and I wouldn’t advocate enacting a policy which would eliminate them. But first of all, I don’t see why those conventions should necessarily be tied to the public expression of two individuals’ committed love for each other, and second, I don’t think that such a public expression should necessarily be tied to any particular set of legal agreements between the two parties. In marriage, like in other contractual relationships, shouldn’t the parties be free to decide for themselves the terms of their union?

    Ultimately, it seems to me that a truly liberal government would generally take a neutral position with respect to the kinds of lives that its citizens want to live, so long as they can do so without interfering with others’ ability to pursue happiness of their own. The idea that one particular kind of family unit (a life-long, monogamous, cohabiting, heterosexual relationship) ought to be enshrined in law, with all other relationships left in a legal quagmire, seems completely counter to the ideal of liberal neutrality. So rather than trying to figure out a way for the government to give equal treatment to every choice (which would obviously offend and potentially disrespect a whole lot of groups), it seems to me like the better choice is to say that the government should have nothing to do with the issue.

  9. Hi again Danny,

    Marriage is a contract. We have long recognized secular marriages. *Some people* give it an additional religious overlay. Bully. No problem. They can do it. But the religious meaning given by many has not prevented those who attach no such meaning to the union from getting married. Ordinary people know what marriage means, the law knows what marriage means, and we have no compelling reason to allow some religious conservatives to restrict the word’s meaning in the innovative way you suggest. I’m certainly not willing to do so in order to protect their delicate sensibilities, particularly given the fact that they never objected to secular unions or calling such secular unions marriages. They are not defending marriage. They are expressing their (supposed!) moral objections to homosexuality. Why should we cow to that? Again, to protect their delicate sensibilities? No way! Certainly not given their failure to object to secular unions or the legal recognition of secular unions.

    Marriage is a contract. Why not, you ask, just let folks write up their own contracts and stop calling any particular name in the legal system? Because all contracts, including marriage contracts, are incomplete. We can’t write down all the possible contingencies and say what happens in each of them. That’s why we have jurists. Thus, again, you line of approach to the problem would introduce legal uncertainty needlessly.

  10. I’m not sure I agree with your attribution of novelty to the idea of marriage that the conservatives wish to defend. Historically, marriage was a union of a man and a woman forming the foundation of the family unit, which traditionally consisted of a married couple and their biological offspring. And I think it’s pretty fair to say that in this country, the legal recognition of marriage almost certainly evolved from this Christian notion. If anyone’s guilty of novel interpretation, I imagine it’s likely to be those groups that simply didn’t exist in any significant numbers in previous eras: atheists, homosexuals, etc. That’s not to say that I find the history of the usage of the term to be the final word on the issue; it’s just that I don’t think it’s fair to suggest that the religious conservatives are simply making stuff up here. It is true that traditionally, marriage has been defined as a union between a man and a woman, and it’s also true that historically, the institution of marriage was closely connected with religion.

    You do make a good point, though, in noting that the characterization of secular unions as “marriages” was never a matter of public outcry. I think you might be right, then, in suggesting that if there was going to be an objection to the liberalization of marriage, and its decoupling from the religious institution of the same name, then that objection should have been raised long ago. In other words, that a sort of statute of limitations applies here, and given the longstanding tradition of secular unions in this country, it might be fair to say that the window for objections has passed. So I concede; well argued, and thank you!

  11. I think Danny Shahar’s comments underscore the deeper issues at stake here. Nowadays marriage is both a civil contract as well as – at least in some cases – an act of religious and cultural significance, the former being historically derived from the later. It was the state who took over the marriage regulation business from the Church, usually with the vague goal (among other goals, however, depending on time and place) of providing a neutral and loosely-defined liberal regime. But the civil law didn’t emerge out of a vacuum. It derived from of the Christian notion of marriage and family and – as all European law – the ancient Greco-Roman tradition. Consequently, marriage, even in the restrict sense of a contract establishing joint use of property, certain entitlements and so on, still retains in form if not in substance an embedded, subliminal – so to speak – link with its original religious and cultural later. The simple fact that marriage is understood as a union between only two individuals, for instance, is profoundly European – other cultures accept polygamy, for instance. The fact that civil law defines family as the nucleus family of two, maximally three generations of first relatives seems to be a Christian cultural relic – the clan, the tribe or – in the Greek and Roman times – the household (family + slaves and servants) was the unit of kind. All this underlies two problems 1) that what is law cannot be something completely artificially decreed, a formal coherent analytical device as Hans Kelsen and other juridical positivists belived it can and should be, but is and must usually be – as Bruno Leoni and Hayek emphasised – something rooted in the culture, customs and values of the community; 2) that an absolute neutrality of law with respect to different cultures, traditions and so on on matters like marriage, family and so on might be impossible to achieve. When one factors culture in, the issue becomes a little bit less clear. For instance, homosexuality was not legally punished in Ancient Athens and other Greek city-states, or the Roman world; we know that it was quite common and ritualised at least within the aristocratic circles; still, the idea of extending marriage to homosexual relations never came up. The functions of one and the other were perceived as being parallel to each other.

  12. Hi Bogdan,

    I certainly agree that law should be rooted in practice. Right on to that. Nor am I aware of any precedents for gay marriage, notwithstanding many precedents for toleration. (I’ve read that homophobia is unique to the three monotheistic religions, but my intuition rebels at the suggestion. Does anyone have wisdom on that score?) I think marriage is more universal than you seem to allow.

    Wilson and Daly say, “Marriage is a cross-culturally ubiquitous feature of human societies, notwithstanding variations in social and cultural details . . . . What this means is that men and women everywhere enter into individualized reproductive alliances in which there is some sort of mutual obligation and biparental investment in their joint progeny and that the alliance is recognized by people other than the marital partners” (“The man who mistook his wife for a chattel,” in Barkow, Cosmides, and Toody edited, _The Adaptive Mind_, 1992, p. 309).

    Men and women have both cheated on their partners often enough to influence evolutionary history and our evolved psychology, plus it seems we have always had some polygyny and maybe even a little polyandry. So the universality of “individualized reproductive alliances” doesn’t mean that our biological programming allows only strict monogamy. But it does mean, I think, that “traditional marriage” is not a cultural or religious construct. The details, yes; the basic pair bonding, no. This view seems like common sense to me. When you fall in love, the other person is *it* and there is no one else. Even those of us unfortunate enough to have had no such experience have seen it often enough in others. If love is an evolved human universal, as I believe, then it seems only reasonable to think “individualized reproductive alliances” would also be an evolved human universal.

  13. Coming a bit late to this, but…

    What’s interesting about Roger’s point about the religious conservatives using the word “marriage” for secular unions is that it parallels the argument Stephanie Coontz has made that the real revolution in marriage is not extending it to same-sex couples, but when it became about love and romance rather than economic/political partnership. Once THAT revolution happened, the demand for same-sex couples to be included was evolutionary not revolutionary. Your argument is parallel: once organized religion granted the term “marriage” to legal unions made outside of the church, THAT was the real revolution. The demand for same-sex inclusion is not.

  14. And to Bodgan:

    Of course the notion of homosexual marriage didn’t come up in those older societies, even where they tolerated homosexuality. One reason for that is that we need to distinguish between, using the terms of sexuality scholar John D’Emilio, homosexual “acts” and homosexual “identity.” It’s one thing to engage in homosexual acts, it’s another to make that the core of your identity and to live one’s life “as a homosexual.” The latter wasn’t really possible until the last 150 years, mostly due to the liberating effects of capitalism and industrialization (as even leftist scholars like D’Emilio recognize).

    One of the themes of my book-in-progress is precisely this point – the ways in which the advent and evolution of capitalism made possible the expansion of freedom and rights in the realm of family that has characterized the last century or two. Same-sex marriage is part of that long-term trend.

    For those interested, an overview of this argument can be found here:

  15. Dr. Horwitz also gave a fantastic talk at FEE over the summer on the topic: Family and the Great Society. If I recall correctly, gay marriage is briefly discussed at the end. I interned at FEE over the summer, so I was at most of the lectures at the eight seminars; that one definitely stands out in my memory as one of the better ones. It’s definitely worth a listen, and thanks are due to Dr. Horwitz for giving the talk.

  16. Dear professor Koppl,

    I can agree that evolutionary biology and psychology tends to support the “traditional”, individualised, reproductive, form of marriage, but this does not diminish at all the fact that marriage is at the same time a social and cultural institution – and one of the most important, at least recently – which is itself embedded in a wider, complex net of social and cultural institutions. There is ample evidence that marriage, family and other interlinked institutions vary significantly with – thus we can surmise are in part shaped by – cultural and social factors across space and time. I don’t think there’s a one way street from biology to, say, sociology – even granting the strong biological & psychological universals in the premise that I think are not outside dispute. Culturally and socially, there is more to marriage than biology (sex, reproduction etc) and psychology (affection, love etc). Professor Horwitz’s article points precisely at how economic and social factors worked to shape the institution of marriage in the modern era. (With regard to the emergence of a homosexual identity – a god working hypothesis -, I think it is but one factor, or just one side of the process that led to calls for gay marriage, the other being a shift in the social function and importance of marriage). So then why should cultural determinants of the institutions of marriage be left out in a discussion about gay marriage, itself a more or less silent revolution on the matter?

  17. Bogdan,

    Yes, biology and culture both matter, but the basic architecture, as it were, of “individualized reproductive alliances” is pretty much a product of Darwinian evolution. It seems like an overstatement to speak of the “original religious” meaning or form of marriage.

  18. My basic point was more general : marriage is a socio-cultural institution and law reflects some of these social and cultural determinants. Since religion is a very durable element and shaped -to a large extent cultures and society, marriage and the law reflects part of that influence. There is a difference between what marriage implies in Muslin societies and what marriage implies in Christian societies, for instance. The biological architecture is not univocal in my view, and it can be embodied in multiple social forms. In my comment I speculated – but I’m not the only one who does this – that even in highly secular societies those cultural, including religious, determinants are still present, even if less visibly, in the social architecture. This doesn’t mean that I exclude an evolution in the social architecture – I was simply trying to define the problem better.

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