2008-10-27Same-Sex Marriage and Creeping Totalitarianism
Same-Sex Marriage and Creeping Totalitarianism
Nathan Ellis Rasmussen
27 October 2008
Recent public debate over legal same-sex marriage has largely centered upon its effects on individuals. Just as important, I believe, are matters that have been discussed only secondarily, matters of the relationship between society and State. Specifically, I believe that the steps necessary to institute legal same-sex marriage represent an unusual and worrisome expansion of the State's claims to authority and status.
The word totalitarian conjures up specters from the last century—images of leader worship and revolutionary violence, of prison camps and secret police. But these are the incidents of totalitarianism, not its essence. Their different forms rise from a common root: A philosophical stand in which the State is pre-eminent, in which it may exert whatsoever power it will, in which its claim upon the bodies and minds of its subjects may not be excelled. That is the common heritage of Fascists and Bolsheviks; that is totalitarianism.
What, then, do I mean by creeping totalitarianism? Simply this: the extension of State power to new domains, the reduction of competing authorities, or the consolidation of State power that had been dispersed. Creeping totalitarianism is a stepwise, slow, even covert movement toward the position of control described above, a quiet and gradual betrayal of liberty. I believe that as many as three such extensions are threatened by the same-sex marriage laws currently being debated: While instituting same-sex marriage, the State must co-opt its competition and promote legal positivism, and it may also diminish democracy.
Co-opting the Competition
Statehood is not a new invention; human society has included organized states for thousands of years. But the natural family is older yet. It is “the natural and fundamental group unit of society” (Universal Declaration of Human Rights 16.3), and its popularity was in no way reduced by the invention of the State. Family environment has a profound, lifelong effect on a person’s values and worldview, creating loyalties and priorities stronger than any the State can induce. Indeed, as G. K. Chesterton observed, “it is the only check on the State that is bound to renew itself as eternally as the State, and more naturally” (Collected Works 4:256, cited by Carlson, in Wardle, Lynn D., ed. (2008). What's the Harm?: Does legalizing same-sex marriage really harm individuals, families, or society? Lanham, Maryland: University Press of America).
Both the Bolsheviks and the National Socialists appear to have understood this well. In the former case, steps were taken to socialize nearly all aspects of domestic life, from child care to laundry, as a step toward the entire abolition of family. In the latter, apart from the sterilization and murder of those whose procreation was deemed unworthy, plans were drawn up for government management of others, and propaganda emphasized that bearing children was public business, a service to the State. Both schemes envisioned a family unable to challenge the supremacy of the State.
It is therefore with a wary eye that I look upon any legislation that purports to subordinate the family to the State. In claiming the power to redefine family, and especially in equating the natural family to an arrangement that cannot “renew itself […] more naturally than the State” (ibid.), the State appears to have moved against the most ancient check on its power.
One might argue that legislation rejecting same-sex marriage likewise asserts State power over the family. That it does. But we have recognized for centuries a general power of the State to regulate marriages of the customary sort, and that power is not extended merely by an explicit legal description of the marriages so regulated.
Promoting Legal Positivism
Previously, of course these marriages were not described by law; they were described by tradition or religion, and presupposed by law. This is entirely unexceptional in history; in addition to these authorities, custom, nature, reason, and others have taken a part in creating legal concepts as diverse as nation-states, warfare, treaty, property, and arrest. Courts have humbly and realistically acknowledged this, in appeals to "community standards" and in other ways. But in order to create a novel form of marriage, the State must exalt law in defiance of these other authorities and declare that marriage is its sole creation. Such a declaration tends toward the notion that law is the sole source of legal concepts, that a legal concept is only to be accepted as it is created by some positive provision of law, and that authority makes a law valid, independent of any connection to exterior factors such as ethics or reason. This notion is called legal positivism.
Legal positivism is ridiculous upon examination. No positive provision licensed the proclamation of the Bear Flag Republic, the war that took the American Southwest from Mexico, or the Constitution that allowed Congress to create the State of California. That State exists by custom and tradition; it exists because we say it does, and we act as though it does. But the flaws of legal positivism do not stop at ridiculousness.
Legal positivism disrupts a balance of power. Legislating same-sex marriage will cause conflict with dissenting religious organizations, because it exalts law over religion; it will chill any thoughtful discussion of family structure in a public venue such as a school, because it exalts law over reasoning; and it will have unforeseen effects on the psychology of children raised where received tradition, generally observed custom (for same-sex marriage has never been widespread even where legal), and their own most likely natural inclination say that two marriages differ, but the State proclaims otherwise. Such legislation may create chaos in law, as where Massachusetts asserts that marriage is defined by its laws, and then in fact has no law defining it; and further chaos in the significance and teleology of the very institution it claims to define, as where two straight Toronto men got married for tax purposes, with intent to divorce upon engagement to women.
Most dangerous is the message implicit in legal positivism. If the State can legislate same-sex marriage despite these other authorities, law itself becomes the standard of rightness. No authority can resolve the chaos created above, for no authority has traction upon the law to impeach or critique it. Law can be arbitrary, and there is no 'should' except what is: A thing is right because it is legal, rather than being legal because it is right. If we previously saw the State attempting to control its organizational rival, this is a broader move against its moral rivals, and a dangerous assertion of ownership over the minds of the populace.
Were all of this the democratic action of the society, acting through the State, it would still be unwise, but it might not be worth protest. But this has not necessarily been the case. Consider the recent experience of California: Proposition 22, a statute explicitly confining marriage to mixed-sex couples, was adopted by initiative in 2000. At that time, 14.7 million people were registered to vote there. Turnout in the election stood at 54%, and the measure passed with 61% voting in favor (an unusually large margin for a vote), i.e., with 4.8 million thinking citizens backing it. In 2008 it was overturned by four of the seven justices of the California Supreme Court. Certainly the disproportion smacks of Judge-knows-best paternalism and the denial of popular sovereignty; but more alarming still is the constitutional effect of the ruling, which subtly defies the separation of powers.
The Constitution of California presumes that marriage is heterosexual, a point conceded by the majority of the Court. Justice Baxter, in a partially dissenting opinion, summarizes the reasoning that led the Court to overturn that presumption: "The majority relies heavily on the Legislature’s adoption of progressive civil rights protections for gays and lesbians to find a constitutional right to same-sex marriage. In effect, the majority gives the Legislature indirectly power that body does not directly possess to amend the Constitution and repeal an initiative statute" (In re Marriage Cases, California Supreme Court, S147999, Concurring and Dissenting Opinion by Baxter, J., p. 1). The Constitution of California does not permit the Legislature to repeal an initiative, but the Court here contends that it has had the same effect, not only legally but with constitutional force, through other statutes it has passed.
I believe the Court would not permit the Legislature to amend the Constitution by majority vote, or rather would not construe the Legislature as having done so, in another case where such amendment went against its own inclinations. Rather it would enforce the constitutional prohibitions strictly. But when legislative powers depend not on the Constitution but on the inclinations of seven judicial officials, it looks very much like a small, relatively unaccountable elite has assumed the power to alter any law and is using the legislative body to give the changes the scent of democracy. Such situations are sadly familiar to readers of history. The chief difference here is that the legislative rubber-stamp has been inferred from prior actions, seized as it were, rather than given explicitly in the present.
Baxter continues: "History confirms the importance of the judiciary’s constitutional role as a check against majoritarian abuse. Still, courts must use caution when exercising the potentially transformative authority to articulate constitutional rights. […] Judicial restraint is particularly appropriate where, as here, the claimed constitutional entitlement is of recent conception and challenges the most fundamental assumption about a basic social institution" (ibid., p. 7). And nowhere is such restraint more warranted than where the citizens, fount of sovereignty, have intervened firsthand, where the Constitution prohibits a more-accountable branch of government from undoing their intervention, and where the alternative to restraint explicitly elevates that branch of government from its constitutionally subordinate position. The true rulers of California have taken back the issue of marriage from their delegates in government, and a judicious judiciary must leave it in their hands: "If there is to be a further sea change in the social and legal understanding of marriage itself, that evolution should occur by […] democratic means." (ibid., p. 1).
The people of California, incensed by the Court's usurpation, have placed the wording of Proposition 22 in a constitutional amendment, this year's Proposition 8. It represents their last good chance to peacefully assert the sovereignty of the citizen over the officers of government, to remind them that they are the instruments of society and not its masters. Thereafter they will have recourse only to that terrible right and duty spoken of in the Declaration of Independence: "When a long Train of Abuses and Usurpations, pursuing invariably the same Object, evinces a Design to reduce them under absolute Despotism, it is their Right, it is their Duty, to throw off such Government, and to provide new Guards for their future Security." I pray such a revolution will never be necessary; but, should it come, I trust in the victory of freedom.
On a personal note, I have lived in former one-party states: Twelve months on Taiwan, when one-party rule by the KMT (1950-1986) had been history for twenty years, and twenty-five months in Ukraine, when memories of the Soviet Union (1922-1991) were half that age. Meeting the people of these lands and hearing their histories has left me with a great wariness, healthy I believe, toward the expansion of government power, either over other institutions or over the minds of the populace, against or in avoidance of a reasoned, democratic mandate. Unfortunately, in our day, would-be tyrants from both ends of the political spectrum push for exactly that. Threats may come equally from an executive who asserts that human rights, civil liberties, and international good faith somehow compromise national strength, or from a judiciary aggrandizing the power it holds, the tool it wields, and the organization that serves it. Let us be discerning of all, skeptical toward either, and resolute in defending our democracy by ballot, boycott, or any other appropriate means, for eternal vigilance remains the price of liberty. It is not too high a price to pay.
Thanks to Emily Dyer, for inviting me to write an essay on same-sex marriage; to David Nance, for sparking my thoughts with a comparison to the Equal Rights Amendment; to Jenny Heintz, for reading a draft; and to Kristin Aten, for drawing Baxter's opinion to my attention. I owe much of the argument about legal positivism to FitzGibbon, in Wardle 2008. I am also indebted to W. H. Auden for "There is no such thing as the State/And no one exists alone" ("September 1, 1939").
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