Paving the Road to Legal Nihilism

Listening to the justices of the Supreme Court of the United States discourse about marriage is as close to an exercise in philosophical futility as a rational person is liable to experience in life. Recently, on the question of 'homosexual marriage' I got so far as to hear one of the justices insist that no limitation could be placed on groups of persons to prevent them from marrying.  It was manifest that the stacked definitional deck the SCOTUS progressives are playing with did not render the speaker self-conscious about the meaning of his own words.  Now, clearly, the justice in question was taking the term "group" distributively:  that individuals of a group ought not be rejected from marriage merely by virtue of membership in a group.  But, if marriage is so "content-neutral" with respect to the relation of biological parenthood and children that no individual of a group can be refused the "right" to marry, other criteria are clearly equally subject to arbitrary variance.  If it is no longer a question of the state interest in promoting the relation of biological parents and children then there is no reason whatsoever why groups of persons as such should be absolutely prohibited from marrying.  Of course, there are such reasons:  but they are a function of nature and if we are not to discriminate owing to nature and the fundamental historical character of the institution of marriage is to be a mere object of social reconstruction, number is arguably less fundamental a natural consideration than the opposite sex nature of marital union (although clearly both are fundamental!).  Indeed, the meaning of "union" is purely equivocal between homosexual relations and heterosexual marriage, whereas the quantity of heterosexual relations at least admits of procreative nature. 

If the only criterion is lifelong commitment and love, then who are the members of the Supreme Court to say that a group of 50 cannot love one another sufficiently to marry? If the law exists to regulate spiritual affinities, then why shouldn't profound and lifelong affinity annealing the friendship of 50 be as valid as that which effects the union of two? Why should glee clubs and football teams be arbitrarily denied the dignity of marriage, unjustly prohibited from marrying?  If all are allowed to seek marriage, then by what norm is the "all" taken distributively rather than collectively?   If it is said that the reason is that marriage must be limited to "2" what is the ratio or ground for this judgment--a reason that as progressivists always insist must be neither religious nor procreative?  Of course, the institution of marriage is in reality a function of the normative ordering of natural procreation to children and child-rearing, and of the just concern of the state to regulate such unions for the sake of the protection of children.  But once we negate this proposition, then why is "the couple" the fundamental "unit" of marriage?  Why should the psychological peculiarity of what may occur with 2 human beings be preferred by state policy over the psychological peculiarity of what may happen among 20?  Surely they should have access as a group:  certainly they are not less procreative than homosexual couples.  And isn't "more love" a good thing?  Do progressivists have a numerological conception of marriage?  Perhaps 2 is Kagan's lucky number? And why shouldn't others "think differently"--William Jefferson Clinton may apply his wife's phrase "It takes a Village" to this particular problem.

The progressive justices seemingly have no idea what marriage is, which is manifest by their insistence that marriage is basically anything that two people who wish to enjoy certain benefits may imagine it to be.  And all such claimants are to be conferred the "right" to insist that everyone publicly acknowledge their new status.  It is critical to note that the issue is not about how one "feels" about homosexuals, but about whether the legal institution of marriage is to be abrogated, wholly redesigned in relation to purposes that literally have nothing to do with it.  Marriage as an institution did not develop to regulate friendships, but because of the nature of the procreative society between a man and a woman, and the effort to promote the stability of that society for the sake of the good of children.  Proponents of homosexual marriage argue that those who by nature and not by accidental impediment are sterile should receive the "benefits" and 'status" conferred by the institution of marriage:  which is like arguing that those not entered in Olympic events should receive medals for those events.

It is conspicuous that the court cannot so much as entertain the idea of natural order with respect to procreation. Many SCOTUS justices simply do not understand why accidentally infertile couples are reasonably distinguished from essentially infertile couples.  They cannot distinguish between a peach tree and a stone, because a peach tree may have accidental impediment to bringing forth fruit and still be essentially ordered to bringing forth fruit:  but a stone is not essentially ordered to bringing forth fruit.  An accidentally infecund couple is still performing what is essentially a procreative act.  This is not something that is true of homosexual activity, which is essentially and necessarily infertile.  Nor do certain of the justices understand that many women who are thought incapable of conceiving children nonetheless do conceive children.  No matter what one's view of the moral analysis of the matter, it is simply true that homosexual "parents" are so called by a pure analogy of attribution with respect to biological parenthood (without which latter reality the legal institution of marriage would not exist nor, one might justifiably think, need to exist).

A homosexual couple is not accidentally but essentially infecund.  If this fact does not bear upon access to marriage, then the fact of a man's paternity cannot be a legal ground for not recognizing him as a mother.  But of course, SCOTUS seems to have crossed this bridge a long while ago.  For example, a sex-changed male, who remains by genetic nature a male, may indeed be categorized by SCOTUS as a mother--for the court, the term seems to be nothing but a term of legal art upon which certain natural facts may occasionally and quasi-accidentally obtrude, but not a term founded upon natural order.  We live in the SCOTUS of Bruce Jenner (aka "Caitlyn" and "how one feels" about this is supposed to trump reason and objectivity). Of course, this does not settle the matter universally and regarding every case as to whether institutions may necessarily presuppose natural order in certain ways--lunacy in one area may somehow be reconciled with reason in another.  But the clear tendency of court progressives is to deny the moral and legal significance of natural order.  This is the same reason that homosexual "parents" may adopt children.  The court has decided that "parents" means whatever they want it to mean.  If they decide it means basketball teams, then basketball teams will be permitted to adopt.  And indeed, there seems no good reason why SCOTUS would not permit communes as such to adopt children.  Why shouldn't the Democratic Party be capable of marriage? 

The progressivist justices operate with an impoverished caricature of an "empirical" conception of nature--a third rate imitation of the subtler reasoning of Hume which itself cannot withstand natural analysis--and therefore, no other conception of nature and its relation to morality and law is to be permitted in the public sphere.  This is the legal order in which the New Natural Law Theory actually has a certain evolutionary advantage, because in the destructive devolution of legal and social order, it can forward itself as consistent with the Ur Principle of the positivist myth, that the "ought" is in no sense whatsoever founded upon or derivative from the "is":  that nature is in itself bereft of normative end or good.  But gaining the right to speak with SCOTUS progressives on the condition that one hold the philosophically contra-naturam and aberrant premise of modernity that there is no normative natural order prior to choice that necessarily conditions choice, social legislation and jurisprudence, is a "right" only dubiously worth exercising.  It is a "right" whose effects seem to extend only to minor damage control with respect to a universal earthquake.

The essential major premise of the SCOTUS progressives is simply this:  that one is to be prohibited by law from publicly and effectively acknowledging natural order as contributing anything normatively foundational to morals and law beyond "the nature of consent".  The progressivist justices of SCOTUS now occupy a preserve of reductionism which dictates (as they say themselves) that those who differ with them can have no rational basis for doing so.  But of course, they provide no truly rational basis for denying either natural teleology or its moral significance, and indeed, there is no reason to think them even minimally literate on the question.  Nonetheless, we are instructed, the sexual ethic of Ginsburg, Kagan, Soto Mayor, is beyond rational doubt:  Ginsburg locuta, cause finita est.  They propose a confessional state whose parameters are to be set by the dubious sexual ethics they seek to enshrine in law.

One must observe that the essential nature of consent with respect to marriage is no more immune in principle to philosophical and legal negation than is the heterosexual nature of marriage or the number susceptible of being legally married to one another.  Consent has a nature every bit as much as does marriage, for example.  Why should the nature of consent be so transcendently elevated in a world in which the nature of everything else is negated?  Nonetheless, seemingly for the justices consent appears to possess a superordinate status.  How this strange cosmological anomaly immunizing consent from the universal naturelessness of things should have come to pass the justices could not say:  it is simply their presupposition. And one is grateful to find that one actual natural reality is ceded some normative status by the justices, although given the effect of their general nihilism their "consent" functions in a universe so impoverished of natural order as to be a fantasy.    

What is the sequitur?  The court will with raw coercive force invalidate, undercut, and forcibly suppress the legislative and democratic processes of states once protected by the Constitution of the United States, supplanting these with their social constructivist demands.  The term "marriage" in the US Constitution must mean what Ginsburg thinks it should mean, and insofar as the US Constitution itself clearly has meant the contrary, or any legislature or vote should be at variance with the Court's impulse to redefine the moral and legal universe, the Court needs to invalidate and drive from the public realm any such views. This is what some of the justices seem to mean by the word "libertarian"--i.e., the power to enforce a legal doctrine in which nature is wholly divorced from law and may not be considered to contribute any normative element to legal understanding in public life and discourse.  That this term "libertarian" is associated with such a doctrine is a perversion of the meaning of the term, since it requires the assertion of what amounts to a  confessional state mandating and requiring public derogation of all other claims on human conscience.  All must publicly acknowledge the sexual ethic of the progressives as having the status of an unquestionable constitutional absolute which there could be no rational ground for questioning.  Ginsburg cannot imagine any naturally normative disproportion between sodomy and marriage, and therefore:  no one else may think differently. Scalia warned of this implication when the anti-sodomy laws were voided by SCOTUS, arguing that it would quickly become "a right".  His comments were mocked.  He was--of course--correct. 

In any case, since the idea of natural teleological order as normative is incomprehensible to the justices, it must be forbidden as a referent for public action.  "All animals are equal, but some animals are more equal than others." Those with post-modern ethical theories evidently are citizens whose arguments are to be heard, while all others are a new sub-class who cannot be acknowledged so much as to have reasons.  Because the justices cannot conceive a reason normed naturally and teleologically, those who reason in this fashion must be denied any right of self-government, and their legal and moral status must be negated.  

One need not be overly enamored of libertarian thought to observe that for the state to determine that all prior thought and custom regarding marriage is to be coercively re-designed by persons assuming that they monopolize reason is not plausibly explicated as libertarian.  If the progressivist view is embraced by the court, states will be forced to genuflect before ethical views contrary to those on which our institutions are predicated, on the force of no genuine political consensus, and presupposing philosophic judgments that are indefensible (e.g., that agency is intelligible as agency without normative reference to end).

Progressivists truly do not understand that on the day that the arbitrary power they have loosed is finally used to destroy their own place in democratic life, they themselves shall have forged the instrument of their destruction.  They are begging the legally constrained originalism of most conservatives to morph into an activism equally as assertive and univocal as their own.  What will they do, when this happens?  Claim there is no precedent?  It will fall on deaf ears. They are paving the way to nightmarish constitutional civil war cloaked in SCOTUS 'cases'. By utterly politicizing the Court, they are inviting all parties to participate in a scramble for power to univocally "solve" the culture wars.  The justices supporting the abolition of the legal institution of marriage as it has been known and cherished for millennia, are people who wish to rule citizens of the US somewhat the way MacArthur ruled Japan, save that their aspirations are far more expansive, arbitrary, and unreasonable.  They have decided that the immemorial institutions of American society do not please them.  And they take themselves to have a duty to violate the legal and moral convictions of the founding expressed in the US Constitution. At the time of the founding, sodomy was a crime; marriage was clearly defined; and no power to alter the definition of marriage was identified as belonging to the federal courts.  In response to this, the SCOTUS progressives assume a power nowhere bestowed; do not care in the least what the Constitution dictates; but wish very much to be obeyed although no legislative authority has licensed their claims...and to be obeyed at the cost of derogating conscience and religious liberty.  

The fragile flower of social tolerance rooted in charity--as distinct from positive approval--is also being placed at significant risk by the effort to coerce states to abandon the legal institution of marriage...  The epoch during which tolerance exhibited by persons who disagreed about sexual morality has been the norm, is being terminated, to be replaced by the era in which internal assent and active celebration contrary to conscience is to be commanded by positive law in behalf of the 'new status'. Of course, it is already true that in many cases private persons are being coerced to perform creative acts celebrating what they believe to be morally bad conduct, commanded by the state to violate their consciences. Should a Planned Parenthood baker be required by law to provide food for a pro-life rally?  Should a homosexual baker be required to provide a cake iced with scriptural lines condemning homosexuality?  One might think not. Nor should wedding photographers or bakers whose conscientious judgment instructs them that homosexual relations are disordered and by nature non-marital be coerced to celebrate such relations. Eating bread gained through the coercion of someone else's conscience used to be thought something beneath one's dignity. Even confessional states did not expect this.  But progressives seemingly have no regard for conscience:  it is an inconvenience to social reconstruction.  

If an atheist baker had objected to providing a cake for my Roman Catholic wedding, I would have pitied him and gone elsewhere, not sued him (being an atheist is penalty enough).  But when "marriage" is simply about a "conferred status" no one may be permitted to snicker.  Having removed the essential natural basis of the institution, the emperor really hasn't any clothes. So the pressure must be ratcheted up. Those who think there is a distinction between an institution bound up with the natural continuity of the human species and homosexual relations are "haters" and it is thought that they should not have civil rights. Those who believe homosexual activity is morally bad are to be coerced to honor it as equivalent to an institution that has literally nothing to do with it in either historical or natural terms, and, moreover, to celebrate it:  because Ginsburg, et alia, are convinced that they should.  Libertarian indeed.  Wedding photographers whose activity is an integral expression of their conviction about the nature of marriage are not to be permitted to ply their trade.  Religious universities that do not acknowledge homosexual marriage as marriage will be coerced to do so, or closed down at bayonet point. How very libertarian.  How tolerant.  How truly "progressive".  Religious liberty is to be quelled, lest the mere knowledge that not everyone gives internal assent to the new order should cause the world not to be sufficiently safe for sodomy.  How could anyone fail to see this in the US Constitution?  We have advanced so very far...  Of course, while all precedent, statutes, legislative jurisdictions, and the US Constitution itself may be suppressed to solemnize sodomy, somehow we must all be strict constructionists about the past few years of legal aberration during which SCOTUS has insisted that every woman has a constitutional right to a dead child.  Nor are these two novel and perverse "rights" unrelated.  The fact is, serious legal interpretation has nothing to do with these judicial decisions, which are nothing other than the imposition of raw progressivist prejudice on the legal structure of the entire country.  

Those saying now that "same sex marriage" can be constitutionally forced upon the states, might as well state:  "War is Peace, Freedom is Slavery, Ignorance is Strength."  George Orwell would know what the Court progressivists are, and how they operate.  Nonetheless, the greatest harm of such a SCOTUS ruling will be reserved for those who will persuade themselves of the falsehood which defines so much of Western culture today, and which progressives on the court are determined to impose:  namely, that ideological mantras like "inclusiveness" and "autonomy" should displace right reason and virtue with respect to the common good.  The progressivists will drive far from one another, and make even more unintelligible to one another, citizens who have profoundly divergent understandings of morality.  Rather than encourage tolerance, the court stands on the verge of a drive to annihilate the legal and moral standing of any party who does not in the internal forum of conscience believe that homosexual relations constitute marriage and should be honored and celebrated as such.  Ginsburg has decided that Aquinas has "no reason" for his judgments. The barrel of a gun held by progressives aching to impose their view of the universe does not suffice to move one to assent.

Progressivist justices bear a heavy responsibility before God and human conscience for violating a possession so intimately necessary to liberty and justice in society as the constitutional rule of law.  Their indifference to the actual meaning of the US Constitution seems of itself difficult to reconcile with their oath of office. And their lack of understanding of the immemorial institution of marriage signifies a remarkable civilizational deficit among persons called to hold such high office.  Natureless "consent" whirring in a vacuum cannot replace the institutions of a free people:  but seemingly it can serve as the ideological pretext for barbaric destruction of a legal tradition.