On Prop 8 Court Decision

First, a state court (not the legislature) rules that the state must accept gay marriage; then the citizens in response pass a binding proposition reversing that; then a federal judge rules that the voters' proposition is against the US constitution. (Just remember, "There is no culture war.")

Gregory K. Laughlin sees this as a culmination of a long process:

I did a quick review of the Prop 8 decision. No real surprises. Griswold v. Connecticut (the decision which declared unconstitutional the state laws barring the use of contraceptives by married couples) was cited three times. Its progeny, Lawrence v. Texas (the decision which declared unconstitutional the laws criminalizing sodomy), was cited nine times. (Between the majority decision and the concurrence and dissents in Lawrence, Griswold was cited nine times.  In his dissent in Lawrence, Justice Scalia raised the prospect of Lawrence being used to justify same-sex marriage. He has been proven prescient.) And a new case has now entered into the citation parade that is being used to destroy what little is left of what used to be Western Civilization: Christian Legal Society v. Martinez (the decision approving UC-Hastings School of Law's discrimination against the CLS and in which Lawrence was cited, but not Griswold) was cited once.

The harm done by Griswold is incalculable. It has become the legal justification for the destruction of every law which seeks to enforce traditional Judeo-Christian morality.  It was cited in Eisenstadt v. Baird, in which its holding was extended to unmarried couples, Roe v. Wade, and Goodridge v. Dept. of Public Health, the Massachusetts case that first recognized same-sex "marriage", to name just three more prominent cases in which Griswold was used to strike down laws enforcing traditional morality. It is a poison that is systematically spreading throughout the entire legal system. And all because most Americans wanted to deny one of the three purposes for which God ordained marriage. Could it be that with God it is all or nothing? If we don't want all of marriage in its fullness, perhaps He will permit us to ultimately have none of it.

--Gregory K. Laughlin serves a law library director and as associate professor of law at the Cumberland School of Law, Samford University, Birmingham, Alabama.

He further notes:

To give you some appreciation of its lasting influence, to date, Griswold has been cited in 2,716 cases, 111 administrative decisions and guidances, and 9,210 secondary sources (e.g., law review articles). In total, a cite check on the Westlaw legal database system on August 5, 2010 retrieves 16,043 separate sources which cite Griswold.

In February, 2009, a study of the HeinOnline database found that Griswold is the third most cited Supreme Court case in history, behind only Brown v. Board of Education and Roe v. Wade.  It is ahead of such famous cases as Miranda v. Arizona (#4), New York Times v. Sullivan (#5), and, most surprising to me, Marbury v. Madison (#13), just to name a few.  It was cited more than twice as often as any of the cases outside the top 10.  It is hard to exaggerate its influence in the 45 years since it was handed down.

Comments

[Kamilla]

The other momentous event from 1965:

"1965, the ACOG redefines conception and the beginning of pregnancy in a "terminology bulletin" without scientific discussion or consensus. The new definition defines fertilization as the union of egg and sperm while "conception" now refers to the implantation of the fertilized ovum."

While not a legal decision, this medical terminology precedent allowed countless Christians to use abortifacent and potentially abortifacent methods of birth control with a clear conscience thus enabling the cancer to spread all the more quickly.

Nothing less than malignant symbiosis.

[dr pence]

Mr. Kushiner,

There are elements in the Griswold case which are considerably less nefarious than the Baird case. A large part of the reasoning in Griswold for not allowing the state to proscribe birth control devices for married couples was a celebration of the marital union. Much of the text is in fact a very moving defense of the claims of marriage as an institution. It is the marriage institution which creates a privacy penumbra around itself which must be respected by the state. This is not the autonomous individual argument which comes in Baird. Baird is like Solomon and Casey as prime cases we should love to hate. The leap Baird makes in divorcing claims of sexual intimacy from the state of marriage was a much more fundamental error than Griswold and in fact renders the marriage centered logic of Griswold incomprehensible. A good number of Catholic thinkers who argue in theology there is a seamless garment between abortion and contraception try to argue the same in our legal history. I think that is why they have seldom focused on the rupture instituted by Baird. But we should read the cases. Ironically enough it is Griswold's depiction of the pre-State nature of marriage which we should be quoting when arguing against the homosexual masquerade (homosexuality is much closer in category to incest than marriage--another argument we might use more fruitfully in the days to come.) Some quotes from Griswold which should offend no Christian nor lover of liberty

Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship.
We deal with a right of privacy older than the Bill of Rights -- older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.

JUSTICE DOUGLAS

MR. JUSTICE GOLDBERG, whom THE CHIEF JUSTICE and MR. JUSTICE BRENNAN join, concurring.

I agree with the Court that Connecticut's birth control law unconstitutionally intrudes upon the right of marital privacy, and I join in its opinion and judgment

[Steve Nicoloso]

What you seem to be missing Dr. Pence is that Griswold makes every marriage potentially a same-sex "marriage." State interest in enforcing any norms for marriage are now "irrational" because there is now nothing inherent to heterosexual marriage (i.e., actual marriage) that cannot be said to belong to homosexual "marriage."

Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives?

If they were illegal, and the police had probable cause, sure! Why not? Of course, the CT ban (IIRC) principally forbade the sale of contraceptives, attempting to stop the source, and thus leaving the police largely out of people's bedrooms. Such a law may or not be (or have been) prudent, but it is not by its very nature unjust.

The very idea is repulsive to the notions of privacy surrounding the marriage relationship. We deal with a right of privacy older than the Bill of Rights.

Baloney! Marriage has always and everywhere been (at least until quite recently in unusually ideological populations), a manifestation of the common good, in which the interests of the society at large (and thus the state) naturally and legitimately lie. The right to privacy does not exist in natural law and is not only not older than the Bill of Rights, it isn't even older than me.

[John FB]

"It has become the legal justification for the destruction of every law which seeks to enforce traditional Judeo-Christian morality."

Where in our nation's original documents does it state that the ultimate purpose of government is to enforce Judeo-Christian morality? As far as I've read, the Founders couched their vision in the language of rights, not in the language of virtue or values or any other moral concept.

Example: how does freedom of worship (which protects the individual's right to worship the Christian god or the Mormon god or the Hindu god or no god at all) reflect your apparent belief that laws exist to enforce and mandate Christian ethics?

[Kevin J Jones]

"Where in our nation's original documents does it state that the ultimate purpose of government is to enforce Judeo-Christian morality? As far as I've read, the Founders couched their vision in the language of rights, not in the language of virtue or values or any other moral concept."

Asking for an "ultimate purpose" is too much." Rather, look to the Tenth Amendment: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." Nobody at the time of the Founding thought the Feds should be doing heavy-lifting on morals language. The technology and physical and political infrastructure wasn't even there.

I recommend people look up a recent essay in The Nation about Justice Douglas. Turns out he was a notorious womanizer and adulterer. Makes his support for contraceptive rights look self-serving, and his poetry about marriage hypocritical.

[Francis Beckwith]

There are no rules of grammar in the Constitution; so, the Founders must have not believed in them.

"Sometimes it's not enough to know the meaning of things, sometimes we have to know what things don't mean as well."
--Bob Dylan (from "Masked and Anonymous")

[Robb]

Mapp, Escabedo, Miranda and Roe. Lawyers in choir robes. Bah....

[Steve Nicoloso]

"It has become the legal justification for the destruction of every law which seeks to enforce traditional Judeo-Christian morality."

With all due respect to Greg Laughlin, this is far too weak a claim. Every culture, at all times and all places, have enforced marriage as a relationship between a man and a woman. The most civilized ones have enforced it as between one man and one woman. There is nothing particularly Judaic or uniquely Christian in the insistence upon marriage as being between a man and a woman. This is not to say I've any great respect for pluralism, but even by the standards of pluralism, the objection that bans on "Gay Marriage" are an attempt to enforce a particular view of morality is absurd.

[Gregory Laughlin]

Dr. Pence,

Actually, I do not condemn Griswold because of the substantive result. I have said many times that the laws criminalizing the use of contraceptives were unwise. The problem with Griswold is that the Constitution contains no such right to privacy. Justice Douglas created it out of whole cloth and, in doing so, the Court usurped a matter which the Framers left to the states. It matters as much who decides and how they decide as what is decided. The Framers knew exactly what they were doing in apportioning powers between the states and the federal government and between the three branches. This subject was left to the states. While the state of Connecticut may have enacted an unwise law in this instance, it was not unconstitutional. As Justice Stewart wrote in his dissent in Griswold:

Since 1879 Connecticut has had on its books a law which forbids the use of contraceptives by anyone. I think this is an uncommonly silly law. As a practical matter, the law is obviously unenforceable, except in the oblique context of the present case. As a philosophical matter, I believe the use of contraceptives in the relationship of marriage should be left to personal and private choice, based upon each individual's moral, ethical, and religious beliefs. As a matter of social policy, I think professional counsel about methods of birth control should be available to all, so that each individual's choice can be meaningfully made. But we are not asked in this case to say whether we think this law is unwise, or even asinine. We are asked to hold that it violates the United States Constitution. And that I cannot do.

It is the manufactured right to privacy created by the Court in Griswold which has been used over and over again to usurp the states' authority in enforcing morality that is the poison to which I refer.

Steve, I agree with all your wrote but your first sentence, but I refuse to surrender the concept that we are, or at least were, a Western Civilization, that is to say, a Judeo-Christian Society, and that Western Civilization is worth defending.

[Gregory Laughlin]

John FB, You need to read more widely, including, for example, the statutes which the Framers enacted in their capacities as state legislators, governors, members of Congress and Presidents, and the decisions they wrote as jurists. The period of the New Nation is chocked full of statutory and case law designed to impose and enforce Christian morality. We can discern what they intended to permit and restrict in the Constitution by what they did as legislators, governors and judges. Anyone who believes the Framers did not intend to legislate morality is ignorant of late 18th century and early 19th century American law.

[Gian]

The Moderns Errors (Left, progressivism, libertarianism etc) are Outside of Tao as CS Lewis defined in in the Abolition of Man--the great moral tradition of mankind. They operate on different premises and thus can not be argued with.
That is, not on the basis of rational arguments but appeals may be made on emotional, historical or empirical grounds.

The Church carries the perfect Tao, other long-lasting human traditions (Hinduism, Islam, Judaism, Heresies etc) carry imperfect Tao since all these traditions accept that the end of Man is to glorify and enjoy God.

Things such as pornography, contraception, abortion, same-sex marriage are outside Tao and can not be accepted. They violate Divine Law and by Benson's argument must be resisted unto violence.

[dr pence]

Mr. Nicoloso
I do understand that many good Catholics and conservatives have for a long time lamented the emmations and penumbras of privacy that are discussed in Griswold. It is a positivist reading though not a natural law argument which finds these arguments so fabricated. You say that there is nothing in Griswold that will not allow same sex marriage. That is true about a lot of cases in which we can fortell that the substance of the argument will lead to an evil as a logical conclusion. This is especially true in the extension of radical autonomy and privacy notions which seem by a 5-4 vote to be the favored jurisprudence of our present supreme court. HOWEVER, This does not come from Griswold. Griswold buttresses the claims of traditional marriage against laws of the state. This is a crucial distinction because this case is not about a claim of individuals to define the meaning of life or follow their own sexual impulses. The communal associations which form the natural society--men in covenanted worship,civic men in protective duties, men and women in nmarriage, mothers in protective duty to their children---these associations are the guarantee of liberty. Arguments that protect fundamental forms of communal association from state laws are not the same as setting up autonomous kingdoms of licentious individuals and their passions in the name of privacy.
All of us have been swimming so long in in a cesspool which normalizes the stench of the abnormal that we are attributing notions that would not occur to even the most liberal members of previous generations. Here is another quote from the Douglas judgement:
"This law, however, operates directly on an intimate relation of husband and wife and their physician's role in one aspect of that relation. "

Does that sound like carte blanche rights to be granted to same sex liasons or adult incest to you?
Justice Goldberg in his concurring opinion argued for a tradition older than our legal text. This is an argument that Mr Scalia as an originalist might not make but it shows again that the natural law tradition was deeper in the marrow of all legal men 50 years ago. Not so today--not in the modern formed hearts of either Robert Bork or Elena Kaagan. From Goldberg's concurrence:
"To hold that a right so basic and fundamental and so deep-rooted in our society as the right of privacy in marriage may be infringed because that right is not guaranteed in so many words by the first eight amendments to the Constitution is to ignore the Ninth Amendment and to give it no effect whatsoever. Moreover, a judicial construction that this fundamental right is not protected by the Constitution because it is not mentioned in explicit terms by one of the first eight amendments or elsewhere in the Constitution would violate the Ninth Amendment, which specifically states that "[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people...."

In determining which rights are fundamental, judges are not left at large to decide cases in light of their personal and private notions. Rather, they must look to the "traditions and [collective] conscience of our people" to determine whether a principle is "so rooted [there] . . . as to be ranked as fundamental." The inquiry is whether a right involved "is of such a character that it cannot be denied without violating those `fundamental principles of liberty and justice which lie at the base of all our civil and political institutions' . . . ."

Although the Constitution does not speak in so many words of the right of privacy in marriage, I cannot believe that it offers these fundamental rights no protection. The fact that no particular provision of the Constitution explicitly forbids the State from disrupting the traditional relation of the family - a relation as old and as fundamental as our entire civilization -surely does not show that the Government was meant to have the power to do so. Rather, as the Ninth Amendment expressly
recognizes, there are fundamental personal rights such as this one, which are protected from abridgment by the Government though not specifically mentioned in the Constitution." GOLDBERG

The Griswold case set the historical tradition of marriage and its claims against the law of a state. Even if Catholics and traditional christians liked that particular law--you have to appreciate the argument which vacated it was not an Anthony Kennedy rhapsody to the untethered soul.
Mr Douglas was a womanizer for sure. And maybe you are too young to understand that once there really was a double standard.
As my daddy used to say, "it is a double standard but at least it is a standard." Judge Douglas did not shape his argument in any way to equate his liason in the hotel room with the duties and rights inherent in the relationships he had entered in marital vows. For this you call him a hypocrite. I think he was acting as a judge and the arguments of Goldberg and Douglas should not be given to our foes as part of their arsenal. Their arguments in Griswold show how far from nature the sexual revolution has driven the American tradition which links liberty to natural communal associations which include marriage between man and woman(or husband and wife as Judge Douglas so heterosexually and naturally asserted).

[Steve Nicoloso]

"This law, however, operates directly on an intimate relation of husband and wife and their physician's role in one aspect of that relation." [Justice Douglas]

Does that sound like carte blanche rights to be granted to same sex liasons or adult incest to you?

Dr. Pence, I'll let you and Greg fight about the influence of various decisions in precipitating the rapid end of Western Civilization, but I'd have to say that I doubt this portion of Douglas' gets quoted very much in citations of precedent. For the lay observer, Griswold is simply a short hand for a vaporous Right of Privacy, which in turn gets cited for practically every bad judicial decision since. Neither Justice Douglas, nor any revolutionary can fully predict where their "innovations" will lead. Progress (to the progressive) is always justification in and of itself. But the best Revolutionary is still a revolutionary, and all revolutions ultimately end up only one way: with the poisoned Fruit we are only lately seeing.

With this:

The communal associations which form the natural society--men in covenanted worship,civic men in protective duties, men and women in nmarriage, mothers in protective duty to their children---these associations are the guarantee of liberty. Arguments that protect fundamental forms of communal association from state laws are not the same as setting up autonomous kingdoms of licentious individuals and their passions in the name of privacy.

I simply disagree. Communal norms are not a different kind of thing from state laws. They are both communal norms. The state, contra the tendentious Paine and contra the Late Religious Fervor which has swept the North American continent, is not an unnatural development. There is no right to do wrong! It may or may not be prudent for the state to attempt to enforce certain norms. But just because it fails or refuses to enforce a certain norm (for whatever reason), does not automatically make it a Right to disobey them.

Freedom is a great thing, but it is only a tertiary good. A state must enforce the security of persons and property, deliver fair and sufficiently speedy justice. Then, and only then, will freedom matter to anyone.

Steve, I agree with all your wrote but your first sentence, but I refuse to surrender the concept that we are, or at least were, a Western Civilization, that is to say, a Judeo-Christian Society, and that Western Civilization is worth defending.

Greg, I've no wish to surrender that concept either. I was just saying that, on this particular issue, viz., same sex "marriage", all races, cultures, religions speak with one voice. I mean just look at how far same sex marriage has gotten in say, Japan, or India, Saudi Arabia, or Botswana?

[c matt]

It is the marriage institution which creates a privacy penumbra around itself which must be respected by the state.

The problem is that the privacy penumbra need not extend to the purchase of contraceptives. There is no need for police to go searching bedrooms. Simply search the drugstores, a very public place. So what Griswold did was deligitimze the state's ability to police, within the public sphere and only prohibiting those public actions, acts that it believed were immoral. It also denied the very true concept that what you do in private can and does, in fact, affect the public sphere.

[c matt]

I think this is an uncommonly silly law.

Boy, was he proven wrong.

[GL]

C Matt,

I believe Justice Stewart was correct that the law was unwise, but not for the reasons he stated. It was unwise because large percentages of Americans in states in which such laws were enacted simply ignored them. This, in turn, lessened their respect for other laws related to the same general subject and led to the effort to overturn those laws, which, in turn, led to Griswold. From Griswold's novel "right to privacy" much mischief has followed.

On the subject of the wisdom of these laws, I often quote St. Thomas Aquinas:

Human law . . . does not lay upon the multitude of imperfect men the burdens of those who are already virtuous, viz., that they should abstain from all evil. Otherwise, those imperfect ones, being unable to bear such precepts, would break out into yet greater evils: thus it is written . . . (Matth. ix. 17) that if new wine, i.e., precepts of a perfect life, is put into old bottles, i.e., into imperfect men, the bottles break, and the wine runneth out, i.e., the precepts are despised, and those men, from contempt, break out into evils worse still.

Summa Theologica, I, II, Q. 96, art. 2. (quoted in Charles Rice, 50 Questions on the Natural Law: What It Is and Why We Need It, p. 93).

In the history of the laws enacted in the late 19th century against the use of contraception, the resistance to those laws culminating in Griswold and the subsequent decisions which Griswold has been cited to justify, we see St. Thomas' observation proven. It would have been better had such laws never been enacted.

[John FB]

Steve writes "I mean just look at how far same sex marriage has gotten in say, Japan, or India, Saudi Arabia, or Botswana?"

Saudi Arabia? They still stone people to death there. "All women, regardless of age, are required to have a male guardian. Women cannot vote or be elected to high political positions. It is the only country in the world that prohibits women from driving." (http://en.wikipedia.org/wiki/Women%27s_rights_in_Saudi_Arabia)

Are you sure you wish to hold them up as a shining example of morality?

On the other hand, same-sex marriage is supposedly supported by the majority of people in Israel (http://en.wikipedia.org/wiki/Same-sex_marriage_in_Israel).

[Steve Nicoloso]

Right, John, I held Saudi Arabia as a "shining example of morality"! This blog is for people who can not only read but comprehend arguments consisting of more than one sentence in length.

[sr]

Does anyone think that contraception should be legal both in practice and in the sale and acquisition of contraceptives in any exceptional cases? Specifically, I am referring to marriages in which the life of the woman would be mortally threatened by a pregnancy. These situations still occur from time to time. Would a hysterectomy be considered a form of contraception if done only to preclude pregnancy? If so, and thus deemed to be immoral, then sexual union would be removed from the marriage, unless the partners consented to a behavior which in the natural order is designed to lead to pregnancy. I doubt that NFP would be deemed sufficiently dependable for situations such as this. (Of course all pregnancy creates some degree of threat to the woman. I am referring here to situations wherein a high probability exists of a fatal outcome.) Or, would it be considered better to allow a pregnancy to occur, understanding that in some religious circles an abortion would be permitted if the life of the mother was threatend. I believe that Roman Catholic doctrine holds that when there is a conflict between the life of the mother and the life of the fetus, the birth of a viable baby is preferred over the life of the mother, so that the baby may be baptized, and thus not in peril of damnation. The (presumably) baptized mother would not be under such threat, and her death thereby less tragic in terms of eternal consequence. Perhaps I am simply misinformed on this. I would be pleased to be read postings on these topics by those readers with knowledge of primary sources who have also had occasions in personal life to deal with them.
I think it noteworthy that cases are reported in which pregnant women decline treatments which could be life saving in order to carry a pregnancy to term, at the cost of their own lives. I think this is laudable, but question whether it should be mandated by the civil authority. Certainly, this is unlikely to ever be a mandate in the modern "Western" world. However, not all the world is "modern" nor "Western." And if the end of Western civilization is indeed nigh at hand, the questions in the first paragraph could become important again. Thanks for your thoughts.

[John FB]

I'm still trying to wrap my mind around the notion that the government has a right (even a duty?) to enforce moral codes, even when doing so may end up with the State involving itself with the most personal of choices between married couples. I frequently hear condemnation of the "nanny state" that tries to impose its values on the populace by banning fattening foods or taxing people for public assistance programs. How is the state entering into the decisions surrounding conception within marriage not the most intrusive uses of government?

[Steve Nicoloso]

sr, off topic.

John, I hardly think the state ensuring that marriages fit, at least the form of, procreative union, forms which have evolved, to the obvious benefit of civilization, over thousands of years in every culture everywhere, amounts to "entering into the decisions surrounding conception within marriage." Banning fatty foods is not bad because it is "nanny state" per se, but because fatty foods do not, in themselves, cause social pathologies (i.e., things any mature and decent state should seek to discourage). On the contrary, it may very well be the lack of fat in our foods that is causing the late obesity epidemic... but, alas, also off topic.

[GL]

John FB,

Do you support same-sex marriage? If so, why?

[John FB]

GL: yes I do.

I have several reasons:
1) Monogamy and committed relationships take work, sacrifice and charity, oftentimes more than what is required in a lifelong bachelorhood. Yes, I know Christians who are celibate, but it is generally either the clergy or missionaries. Expecting a layperson to live as a monk without the support and aid of a close-knit community that a monk has is unrealistic.

2) Gay couples have shown themselves willing to care for children that are oftentimes difficult to place: minority children and special-needs children. Statistics show that children are far better off in a two-parent household (same-sex or opposite-sex) than in a single-parent household. These studies are undisputed. If a couple is willing to make the sacrifices of raising these families, they deserve certain protections under the law while doing so.

3) They have petitioned the government for the ability to obtain civil marriage licenses. Having done so, those who oppose it must provide some compelling evidence that it would inflict some injury to the culture at large. In case after case, no one has provided evidence that this would be true. I've read the Proposition 8 transcripts. Prop 8 witness David Blankenhorn seemed to have conceded numerous times that gay marriage would be beneficial, at least for the members involved and their children, and even for society as a whole. This was one of their star witnesses, mind you.

http://prop8.berkeleylawblogs.org/2010/01/31/blankenhorn-testifies-about-marriage-scholarship-and-soul-searching/

I completely understand how novel and problematic gay marriage seems. At the same time, it is very much a deferential statement on the notions of commitment, fidelity and monogamy. In an American culture that is extremely flighty, transient and self-seeking, I can only see this is ultimately a good thing.

[GL]

John,

I'll accept, for argument sake, the facts as you present them in your three-point reply to my questions. Let me follow-up with some questions which came to my mind when I read your reasons for why you support same-sex marriage:

1. Your initial point appears to assume that the work, sacrifice and charity required in monogamy and committed relationships are to be preferred. Why?

2. Why do gay couples (or for that matter, straight couples) deserve certain protections under the law while caring for children? Exactly what certain protections do that deserve? Why should gay and straight couples be treated the same as regards the protections under the law they receive while caring for children?

3. Why must those who oppose same-sex marriage provide some compelling evidence that it would inflict some injury to the culture at large?

[MCModerator]

Comments are being closed because the conversation has become uncivil.

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