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Prof. Arkes' suggestion seems to me to be about as useful as trying to fend off a robber by throwing your wallet at him. It accepts as a premise the fiction that marriage is not only regulated by positive law, but defined by it ("a legal union"). This sleight of hand is the entire capitulation to error. It renders any definition conventional, and hence arbitrary.
Arkes also conflates the notions of multiple concurrent marriages (e.g. polygamy) and a numerically plastic legal construct. Strictly speaking, his suggestion would do nothing to thwart polygamy. However, it again presumes the norm of the plastic notion in its attempt to define it, opening the door to another food fight over competing absurdities. No thanks.
The entire problem here is whether the institution of Western culture's appropriation of marriage can be saved from the encroachment of legal positivism, not how to save marriage by it. Reagan's aphorism is fitting here: government is the problem, not the solution.
The question was raised by a reader about the grounds on which the federal government would pass the kind of ordinary legislation I’ve recommended here, on marriage. This may be a reader coming late to the issue, for we faced this question many years. What I’m recommending is that pass yet another version of the Defense of Marriage Act (DOMA), putting the question anew to the Supreme Court. And as with DOMA, the legislation would contain these components:
--The federal government has the need to pronounce on the meaning of “marriage” in federal law, whether on matters of taxes or naturalization. We would simply have Congress stipulate the meaning of “marriage” in the federal code: a legal union of no more than two people.
--The federal Constitution became engaged in the issue of marriage also through the “Full Faith & Credit” Clause of the Constitution (Art IV, Sec 1)—the clause that leads us to expect that a marriage performed in Massachusetts will be honored in Illinois. The Court has now made same-sex marriage legal in all of the States. But we can revive the issue of DOMA again on this matter of polygamy: here, that a State need not be obliged to credit, as a marriage coming in from another State, a marriage with more than two people.
Some of our friends suggest that we turn away from the main question, on marriage, and consider how we can live our lives in separate enclaves, untouched by the revolution in the laws that same-sex marriage is already generating. But there will be no easy retreat. Catholic Charities was compelled to give up adoptions if it would not place children with gay or lesbian couples. Small Catholic schools are being faced with costs of litigation they cannot bear if they will not make provision for LGBT groups or reach out to accommodate gays, lesbians, and the “transgendered.” And that says nothing of the many ways in which people armed with the authority of the State can remove tax exemptions and make membership in a parish far more expensive at the margins for many people of modest income.
I’m afraid that it’s a benign illusion to think that we can mark off such an enclave without challenging the main decision, on marriage itself. I agree with my friend George Marlin that the odds are tilted against us right now, whether with my path or his. But if this is the path we must take, then it’s a matter of summoning the nerve to take it.
You wrote above, "Some of our friends suggest that we turn away from the main question, on marriage, and consider how we can live our lives in separate enclaves, untouched by the revolution in the laws that same-sex marriage is already generating. But there will be no easy retreat."
Just in case my comments below seemed like one of the examples you were referring to, that wasn't at all my intention. My suggestion was to address the issues we might face while living, not "untouched," as you say, but precisely because -- and particularly because we are Catholic -- we are, or will be, "touched" by the revolution.
And I wasn't at all suggesting a retreat, easy or not. Instead, I see the potential that we will likely be living in the midst of persecution (as Cardinal George's famous line predicts). And I wasn't suggesting either that "we turn away from the main question on marriage". As I said in that post, "I'm not saying that approach shouldn't be taken, and I pray daily for its success. But if/when the suits and penalties...." In other words, I was saying that the other ideas would be nice to have, not as replacements for the legal approaches, but as additional potentially useful topics (in my opinion) for TCT to address.
As I concluded in that post, I was suggesting articles about "other concrete actions that can strengthen our resolve to bear through these particular hard-times-to-come." To me, my phrase "strengthen our resolve to bear through" is the key phrase in my comment's intention, not any idea of "retreating" into "separate enclaves".
I happen to agree that the strategy of using ordinary legislation, which starts with modest and incontrovertible premises such as the limitation of marriage to only two persons, is the best and perhaps only viable approach to take right now. I might even start more modestly with legislationlimiting marriage to human beings, just to see how many Democrats would feel obliged to stand up for inter-species marriage.
But ultimately, any effort to reclaim traditional marriage must depend on a popular understanding of the need to do so. It may well be that, as Justice Roberts noted, there is no principled legal distinction that can be drawn between the Court’s justification for same-sex marriage and for polygamy, but the average citizen seems to be comfortable with the claim that any two people who love each other should be allowed to get married – and there is little reason to expect that they will care much about legalized polygamy either.
Perhaps it is time for the institutions who are legitimately entrusted with the inculcation of moral values – the Catholic Church, for example – to start thinking along parallel lines, as to what modest steps they can take to lay the intellectual groundwork for a renewed understanding and respect for traditional marriage.
Not entirely facetiously, I wonder whether there isn't something to be said for abandoning legal restrictions on marriage entirely. Polygamy (in his dissent against the Obergefell decision John Roberts indicated that the legal principle that the affirming judges used to create the right to homosexual marriage equally creates a right to polygamy)? Fine. Polyamory? Fine. Every member of the River City Frog Watchers Club married to every other member (regardless of gender) of the River City Frog Watchers Club? Fine. Since the legalization of same sex "marriage" has effectively created a new institution which is NOT marriage (as understood according to previous definitions), and at the same time effectively dissolved the institution constituted by the previous understanding (albeit generally badly understood by 21st century Americans) of what marriage really is, why not let the definition be watered down until everyone is married to everyone else, and the entire concept is completely lost? Maybe then, people (and legislators and even federal judges) would recognize that something in fact had been lost, and they would start to try to rationally walk it back to establishing a reasonable institution - which might just as well be true marriage.
Here's another vector to pursue...the possibility that obergefell was keystone cops versus a kangaroo court, and the best defense of marriage was never even tried. I an speaking of the fact that homosex marriage represents the most fundamental form of sex discrimination and therefore violates federal law.
You shouldn't be allowed to marry unless your marriage includes one woman and one man? I think I get where you are coming from... and I agree. Women should not have signed on to a redefinition of marriage that excludes a woman; men should not have signed on to a redefinition of marriage that excludes a man.
Unfortunately, a long time ago, our cultural "betters" buried the fact that marriage was not discriminatory; any one man was free to marry any one woman.
TCT would do a great favor for its readers if it published the list of major corpporations which support sodomite marriage. Coca Cola, Shell, General Mills, Starbucks come immediately to mind. As Chief Justice Roberts pointed out, Obergefell had nothjing to do with the Constitution. BTW, should not Justrices Kagan and Ginsburg recused themseles from the Court on Obergefell as they had both presided over same sex marriages before the decision?
Only a patrimonial interest of his own, or of a relation by blood or marriage would disqualify a judge. Any number of judges have ruled on legislation they themselves introduced and steered through Parliament as government ministers, before their elevation.
I read and take to heart and consider all the various articles in TCT and elsewhere about the possible "approaches" to somehow turning this trend and court decisions (along with other issues of similar nature) around in our society, and I hope they are successful. But the half-empty part of me fears that the downward spiral may only become steeper and steeper.
And if that is the case, I guess I would like to see more articles and discussion about how Christians -- and particularly Catholics -- should act under those potential conditions, since Catholics are primarily the ones who reach back to contraception and easy divorce itself as a primary generator of the follow-on issues and so would presumably be most immersed in the problems encountered.
To my pessimistic side, the "how do we effect a legal change" approach is, or soon may be, not unlike early Christians persecuted and martyred in Rome asking "how do we formulate a legislative response to the emperor's declarations that will stop this horror?" I'm not saying that approach shouldn't be taken and I pray daily for its success. But if/when the suits and penalties and job denials and sentences and, gulp, persecutions begin (well, expand, since they have already begun), it would be nice for those of us without law degrees or the knowledge and ability to file briefs with the courts, to have concrete well-thought-out articles and advice for ways of "living" that can help if those persecution conditions arrive.
And perhaps more importantly, the sorts of things we should be practicing right now in anticipation and preparation for that potential arrival. Prayer and fasting to be sure, but perhaps there are other concrete actions that can strengthen our resolve to bear through these particular hard-times-to-come?
Of course, the early Christians did obtain their legislative response, from the august emperors, Gratian, Valentinian et Theodosius on 27 February 380: "IWe will that all the peoples ruled by the moderation of our clemency should profess that religion which was delivered to the Romans by the divine Apostle Peter, and which the said religion declares was introduced by himself and which is now professed by the Pontiff Damasus..."
I share your pessimism that this insanity is going to play itself out to the bitter end and would also appreciate some guidelines in how to live in this world without partaking in these evils.
For instance, I already "boycott" various companies that promote those sorts of things, but though inconvenient, they, generally, are not terribly burdensome to avoid. But as an example of something to think about, I wonder where the "catacombs" of this modern world might be.
Here is a particular case: I participate in Facebook regularly enough, but I could well imagine it becoming a "participation" in evil if it adopts certain rules or required behaviors for being there (I'm sure it is probably already over that boundary in some areas -- at this point I take St. Paul's advice to just eat the meat and not ask where it came from, but that blissful ignorance may not last).
And if I reach the point (as several Facebook friends have likewise worried about) where I need to stay off of it, it would be nice to know of some "online catacombs" where fellow Christians can meet and discuss and interact without that burden (I know, I know, talk about First World problems, eh?). Or perhaps such places need to be created in anticipation of those sorts of developments (Wow! Suddenly imagining a "secret" TCT link to "The Catacombs Thing" social media site... :-) )
Anyway, I'm sure there are other more pressing areas that could be addressed too.
What would be the authority in the federal Constitution for Congress to pass legislation restricting marriage to two people?
I assume that you won't draw an artificial line and will also devise a broader strategy to outlaw divorce and second (or more) civil marriage. The Church seems to have ceded this affront to marriage and natural law to Henry VIII and made it a private, Church-only matter. It is also a matter of mortal sin that will send souls to hell, but we seem to be curiously accommodative to its existence.
The heart of the matter is the child that has been procured to be the toy or one could say chattel, of the homosex couple. Your incrementalist suggestions to wall off polygamy will only entrench the homosex dyad. Heather may have two mommies, but she has no daddies. The only solution when a child, or a slave, is at stake is the single minded pursuit of an amendment to the constitution.
Courts in Europe have long had to wrestle with the question of polygamy.
When citizens of one country, say Algeria or Pakistan, enter into a marriage there that is actually or, more often potentially, polygamous and then come to settle in, say, France or the UK, where marriage is strictly monogamous, the courts have had to ask themselves whether the relationship between a man and the ladies living under his protection in a polygamous union is sufficiently analogous to the relationship of husband and wife, as described in the Civil Code, to make it just to apply the same rules to them. Otherwise, there is a real danger of the courts creating obligations, rather than enforcing them.
The same question can arise in relation to succession to moveable and immoveable property, the owners of which are citizens of and domiciled in a foreign country.
No jurist has suggested there is an easy answer to this and legislatures are reluctant to discuss it..
Perhaps, the great Scottish judge, Lord Meadowbank, was right when he said, “The whole order of society would be disjointed, were the positive institutions of foreign nations concerning domestic relations and the capacities of persons regarding them, permitted to operate universally and form privileged casts living each under separate laws, like the barbarous nations during many centuries after settlement in the Roman Empire.” The same consideration would apply, as between states.