On same-sex marriage, who are the real ‘extremists’?

By Phil Lawler ( bio - articles - email ) | Jan 12, 2012

Last weekend in New Hampshire, during a debate among the Republican presidential candidates, host George Stephanopoulos asked—and asked, and asked, and asked—a question about contraception. Framing his question as a matter of constitutional law, Stephanopoulos asked whether the individual states have the right to restrict sales of contraceptives.

The Republican candidates—led by Mitt Romney, toward whom the question was originally addressed—prudently avoided the constitutional issue. As Romney observed, there is no political push to ban contraceptives. No state is likely to attempt such a rash action. The question has no bearing on the 2012 presidential campaign. Like every other candidate on the stage, Romney recognized the purpose of the question. The audience recognized it, too. In his analysis for the Wall Street Journal, William McGurn explained:

As the audience appreciated—they booed after Mr. Stephanopolous's sixth follow-up—these questions were designed less to illuminate than to paint Republicans as people who hate gays and are so crazy they might just ban contraception if elected.

No Republican candidate dared to suggest that the states might have the constitutional right to ban contraceptives. To make that suggestion would expose a presidential contender to harrowing criticism. The candidate would be quickly dismissed, by the custodians of conventional opinion, as an extremist. And that was the point of the relentless questioning by Stephanopoulos: He was trying to set the stage for a thorough vetting of “extremist” Republicans.

Well, since I am not a presidential candidate, let me answer the question directly. Does the US Constitution, properly understood, give the individual states the right to ban the sale of contraceptives? Yes. The Griswold case was wrongly decided, and the Supreme Court’s wrong-headed invention of a “right to privacy” in that case led directly to the more egregious findings of Roe v. Wade.

But why stop there? As long as I’m likely to be dismissed as an extremist, I might as well anticipate another question that Stephanopoulos could have asked. Should the states ban the sale of contraceptives? Absolutely.

Since our society embraced the routine use of contraception, the damage to the family—and thus to all of American society—has been far more devastating than anything Al Qaida could have imagined. And while we have arguably made great progress in the war against terrorism, the casualties of the sexual revolution continue to pile up, and the assault on the family is intensifying.

For proof of that, we need look no further than the next question in that New Hampshire debate. Following up on the line of questioning by Stephanopoulos, Diane Sawyer asked for the candidates’ thoughts on same-sex marriage. But rather than pose the question directly, Sawyer eased into the issue with a smarmy introduction. Rather than continue talking about constitutional issues, she said, she wanted the candidates to talk about a “real” issue—the sort of issue that people talk about at home. (She thereby seemed to dismiss the Constitution as a “real” issue, or one that ordinary Americans could be expected to discuss. The authors—and original readers—of the The Federalist Paper were spinning in their graves.) That issue, Sawyer said, is how same-sex couples could form stable, lasting relationships without the benefit of legal marriage.

As William McGurn noticed in his Wall Street Journal essay, Sawyer’s line of questioning had the same purpose as Stephanopoulos’s: to help pigeonhole Republican candidates as extremists. After all, who would dare to say anything negative about those nice homosexual couples, who want nothing more than to live a quiet suburban life? Thus the question was framed in the terms most favorable to the gay-rights movement, and defenders of marriage were on the defensive.

One candidate, Newt Gingrich, eventually turned the tables by pointing out that a demand for acceptance of same-sex marriage causes problems of conscience for other members of society: Christians, Jews, and others who believe that marriage is an institution designed by God. The liberal media, Gingrich observed, are quick to see the problems facing homosexuals when same-sex marriage is not legally recognized, but slow to recognize the threats to religious believers when it is.

A generation ago—even a relatively few years ago—it was the proponents of same-sex marriage who would have been characterized as “extremists.” In 1950 or even 2000, no leading candidate for the presidency would have dared to suggest that homosexual unions receive the same legal privileges as traditional marriage. But the terms of the debate have been shifting at an astonishing pace. Writing for The Public Discourse, Byron Johnson reports that in 1988 only 11% of Americans believed that same-sex marriage should be recognized. By 2008 that number had more than tripled, reaching 38%. Today, according to the pro-gay Arcus Foundation, American opinion on the question is evenly divided, with 47% in favor of same-sex marriage and 47% opposed. The trend is quite clear, and since polls show that younger voters are more favorably disposed than their elders, the eventual acceptance of same-sex marriage appears to be a foregone conclusion. The most radical change in the history of American public policy could be accomplished within a lifetime.

But before we plunge into that brave new world, we Americans would do well to stop and think about the consequences of re-defining marriage. For all of recorded history, mankind has understood what marriage meant: a union of man and woman, ordained toward the rearing of children. Then in the 20th century, by accepting contraception, we severed the link between marriage and children. Now in the 21st we are threatening to finish the task of deconstruction, by effectively erasing the definition of marriage.

In its 2003 decision requiring legal recognition of same-sex unions, the Supreme Judicial Court of Massachusetts found that under the existing law, “a person who enters into an intimate, exclusive union with another of the same sex is arbitrarily deprived of membership in one of our community’s most rewarding and cherished institutions.” [emphasis added] But there was nothing “arbitrary” about society’s age-old recognition that marriage—the union of a man and a woman—was the only natural way to provide for the birth of children. Society recognized what nature clearly intended.

Up until the past few years, every civilized society saw marriage as an institution with claims that were prior to, and therefore superior to, the claims of state authority. A society that wanted children—that is, a society that wanted to survive—saw the importance of fruitful union between men and women, and protected that marital bond. Different governments adopted different specific policies to protect marriage and family life, but every society agreed that marriage and family should be protected. And every society, again, knew what marriage was.

Now our society—which, not coincidentally, has seen an unprecedented disintegration of family life—threatens to abandon that age-old understanding of marriage. Rather than defining marriage as God (or, if you prefer, Mother Nature) clearly designed it, we define marriage as our political leaders would prefer it. So marriage means what the courts and legislatures say it means.

“When I use a word,” Humpty Dumpty said in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.”

But if the government can define marriage, can the government not change the definition? What the courts and legislatures give, the courts and legislatures can take away. In an insightful analysis for Touchstone magazine, Douglas Farrow shows how the understanding of marriage is debased by the legal recognition of same-sex unions: “Institutionally, then, it is nothing more than a legal construct. Its roots run no deeper than positive law.”

The traditional definition of marriage—pace the Supreme Judicial Court of Massachusetts—was anything but arbitrary. Everyone knew exactly what the word meant; everyone enjoyed exactly the same rights vis-à-vis the institution. The government did not tailor the definition of marriage to suit passing fashions, because the government could not change the definition. But now that we know the government can change the definition of marriage, there is no obvious way to stop the government from re-defining other institutions and other rights that we have heretofore considered fundamental.

If the right to marry is a fundamental human right, then your opposition to certain forms of marriage can be seen as a human-rights violation. Then—as Newt Gingrich pointed out—the quest for full acceptance of some human rights begins to impinge upon your human rights. You can be identified as an enemy of the state. The government can inaugurate re-education programs to wipe out your way of thinking. Farrow sketches the dangerous consequences of this way of thinking in his Touchstone article. The logic that demands acceptance of same-sex marriage—the logic that overturns decades of respectful reference to “the Laws of Nature and of Nature’s God”—the logic that allows the state to invent new human rights—is ultimately a threat to all established rights: to academic freedom, to family autonomy, to religious liberty.

Today’s social radicals have adopted a clever tactic: they paint their foes, the champions of the status quo, as the extremists. Don’t believe them. The real “extremists” on America’s political scene are those who are pushing relentlessly toward a novel understanding of human rights: an understanding completely at odds with the definition set forth so eloquently in the Declaration of Independence.