Judge Vaughn Walker's legal ruling striking down California's Proposition 8 certainly was no triumph of intellectualism. But while it's easy to thus dismiss it, what's usually forgotten is that reasoning such as his flies only in a certain cultural milieu -- a milieu that, in part, has been shaped by conservatives. Let's examine the matter.
Walker's lack of intellectualism is profound. Among other things, he said that opposition to faux marriage was ultimately based on "moral disapproval." While this is a rhetorically compelling argument in an age where "morality" has become a dirty word, it is also nonsense. This is not because he is wrong in his understanding of marriage's more cerebral defenders; it is because he is wrong in his understanding of law. For the fact is that all credible legal proscriptions and prescriptions are a matter of "moral disapproval." Don't believe me? I'll explain.
A law is by definition the imposition of a value (and a valid law is the imposition of a moral principle). This is because a law states that there is something you must or must not do, ostensibly because the action is a moral imperative, is morally wrong, or is a corollary thereof. If this is not the case, with what credibility do you legislate in the given area? After all, why prohibit something if it doesn't prevent some wrong? Why force citizens to do something if it doesn't effect some good? You'll never see a powerful movement lobbying to criminalize chocolate ice cream or broccoli.
To provide a concrete example, what is the possible justification for speed laws? It isn't simply "me no like speedy." Rather, there is the idea that it is wrong to endanger others or yourself, and, in the latter case, it could be based on the idea that it's wrong to engage in reckless actions that could cause you to become a burden on society. Of course, some or all of these arguments may be valid or not, but the point is this: If a law is not underpinned by a valid moral principle, it is not a just law. Without morality, laws can be based on nothing but air.
This brings me to a problem with a certain conservative argument. We have heard many, while bristling at Walker's ruling, complain that "one judge has wiped away the votes of seven million people with the stroke of the pen." Like Judge Walker's "moral disapproval" nonsense, such talk certainly is rhetorically effective. And if it is used simply for the purposes of rhetoric, it may be fine. But the reality is that if the Proposition 8 vote had been swung a few percentage points the other way, the measure wouldn't have passed, and the left could be citing the will of the people to buttress its cause.
But right and wrong aren't determined by popular will. Nor should the latter have a bearing on judges' rulings, as they are supposed to be governed by the Constitution. Thus, the problem with Walker's ruling is not that it is anti-majoritarian; it's that it is unconstitutional and dumb.
Since the constitutional factor is obvious, let's delve into the dumb part. Harking back to the foundation of law, if "moral disapproval" is off the table, on what legitimate basis can we refuse to recognize any conception of "marriage"? If right and wrong cannot be a guide -- or if we live in a relativistic universe in which there is no wrong -- then how can you, with credibility, prohibit polygamy or Billy from marrying his billy goat?
So while many people today believe, in grand relativist fashion, that morality is some arbitrary thing, they have it exactly backwards. Morality is "The Rules," and, just as with a football referee who ignores his game's rules and makes calls based on what feels right, it is when you ignore The Rules that you become arbitrary. Your rationale, boiled down, is then nothing more than "me no likey," nothing more than might makes right. For, to state the obvious, the recognition of morality is the only thing that moors us to reality -- moral reality.
And this is where the 7,000,000-vote argument finds common ground with Judge Walker's judicial activism. Both perspectives ignore morality and reduce the debate to one of who will wield the might that makes right, of who will be that renegade football referee. It is either the tyranny of the majority or the tyranny of a black-robed minority, and who advocates which depends on how each group lines up on a given issue.
(Note: This isn't to say that 7,000,000-vote-argument advocates aren't more morality-oriented than Judge Walker's set. After all, many conservatives would point out that they cite the majority only because it supported a constitutional and moral position. Nevertheless, when taken at face value, the majoritarian argument is not logically sound.)
So what should be the logical basis for an argument against faux marriage?
Simply that it doesn't exist.
And you cannot have a right to that which doesn't exist.
This is not slick-lawyer sleight-of-hand -- this is what exposes it. For this issue is about changing definitions, not changing rights. After all, like all people, those experiencing same-sex attraction have always had a right to marry and have done so since time immemorial. It's just that marriage was always understood -- correctly -- to be the union of a man and woman. Thus, whoever did get married tied the knot with a member of the opposite sex.
But when we accept that a same-sex union can be marriage -- a standard with no credible basis whatsoever in history (which renders the votes of the ultimate majority) or morality -- the discussion about rights naturally follows. After all, if such a union is marriage and people have a right to marry, how can they be denied recourse to it?
Speaking of majoritarian folly, this brings us to another way most of us have undermined ourselves. While many say the Walker set has redefined marriage, this is nonsense that gives non-thinkers too much credit. They have not redefined it.
They have undefined it.
That is to say, they do not steadfastly, unabashedly, and definitively say, "Marriage is the union between any two adults and nothing else, and here is the moral basis for this conclusion." No, they would then be drawing a line just like the traditionalists, wouldn't they? They would be guilty of the kind of "bigotry," "exclusiveness," and "narrowness" of which they accuse their opponents. Relativists can't have that, so they offer no definition. All they do is imply that the traditional definition is incorrect.
And this is another hole in the Walker set's argument. After all, while they scoff at the claim that legalizing faux marriage paves the way for polygamy and everything else, an "undefinition" excludes nothing. Sure, they can oppose such things, but only as the renegade football referee saying "me no likey."
The reality is that if they cannot definitively say what marriage is, how can they be sure they know what it is not? And this is why their criticism of traditionalists deserves no respect: If they cannot say what defines a "right" marriage, they cannot credibly say the traditional definition is the wrong one.
Yet they don't have to because, while they can reliably define nothing, we allow them to define the terms of the debate. Know this: Every time you use the term "gay marriage," "homosexual marriage," or even "traditional marriage" (the Lexicon of the Left), you undermine yourself. If one of the first two, it is because you are explicitly acknowledging an imaginary institution's existence. If the last one, you are implying it. For what is the other side of the coin of "traditional marriage"? And if the American psyche is imbued with the idea that "marriages" between same-sex individuals exist and that marriage is a right, well, you can forget the legal and political battles. If you lose the cultural one, everything else follows. It's just a matter of time.
This is why "conservatives" must stop
being conservative and start being bold. They must start thinking outside the
box. Otherwise, we may win some battles in courts and ballot boxes -- we may
carry the approaching November day -- but we'll be sure to lose the war and the
This article first appeared at American Thinker
© 2010 Selwyn Duke — All Rights Reserved