There has been a reasonably principled discussion of the underpinnings of support for/opposition to the Marshall-Newman amendment over at NoVA Townhall, with Joe expressing a willingness to examine whether the harm the amendment would do to families outweighs the perceived benefits. We certainly welcome these honest reappraisals.
Meanwhile, I’m delighted that one of their bloggers, Sophrosyne, has raised the question of what, exactly, we mean when we talk about “liberty.” S/he has done so by ridiculing part of this passage from Lawrence v Texas:
These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State. [emphasis added]
I am curious to know, if this does not describe “the heart of liberty,” what does? Can anyone help me out here?
It sounds like the right to hold personal religious beliefs. Is that what this is all about, the state compelling people to hold beliefs that align with Sophrosyne’s/”natural law”/The Bible?
It certainly sounds that way to me, but I’d love to hear an explanation from them. What does liberty mean? What would Thomas Jefferson think of this?
I was more referring to the misuse of the substantive due process clause, first used in these terms in 1992 (I believe”¦ although I’ve been taught that they find their true genesis in Minersville v Gobitis in 1940) with the Casey v Planned Parenthood decision upholding the central holding of Roe v Wade under a new justification”¦ although I believe the usage in Lawrence is equally ridiculous (despite the fact that I disagreed with the silly and unenforceable law that was shot down). From the majority opinion in Casey:
I believe this use (or rather misuse) of the substantive due process clause is extremely dangerous and obviously it empowers the federal courts not to interpret the Constitution as the Constitution clearly doesn’t address the right to stick scissors in an unborn baby’s skull minutes from birth and suction his/her brains out b/c the mother, for any reason whatsoever: doesn’t want to have the child and doesn’t fit into the mother’s own “concept of existence.” As you can see in the first paragraph above, the court refused to address the primary good (right to life) but choose to address a secondary good (ability of women to participate, people are used to it”¦ etc)
I was criticizing this precedent and type of legal thinking”¦ the radical abuse of the substantive due process clause. When the Supreme Court says we have a right to define our own “concept of existence” and thus justify the denial of the right to exist from the most innocent among us”¦ they’ve pretty much opened the door to justify whatever the heck they choose. It is this raw judicial power ungrounded in the Constitution (beyond some odd notion of penumbras and emanations from clauses that absolutely do not speak to this issue) that is one of the reasons why I believe it is a legitimate concern that these same judges or judges using this intellectually hollow relativistic precedent will decide to redefine the fundamental definition of marriage”¦ stripping out the part that unites the two complementary parts of humanity and making it a solely emotional relationship between any two (or three or four”¦ who are we to limit someone else’s “own concept of existence, of meaning, of the universe and the mystery of human life”?) individuals. I think it is embarrassing to anyone who believes law is a rational discipline and not some philosophy class and I honestly believe this very section will be the foundation upon which some judges choose to ordain genderless unions as the new definition of marriage, establish some right to physician-assisted suicide and euthanasia, etc.
I take Justice Scalia’s words very seriously in the Lawrence case when he said “do not believe it” when the majority said that the marriage issue would (or could) be viewed differently from criminalization of sexual conduct. He said the Lawrence rational:
I understand how you, as an advocate of same-sex marriage, are pleased by this trend/outcome in this case (and I am sure you can understand how I, as an opponent of same-sex marriage, am not)”¦ but I hope you can look past this singular issue to see how this legal gobbly-gook can lead to ANYTHING and really is not a sound basis of Constitutional law. This “New Age jurisprudence” (as Judge Bork called it) is frankly embarrassing and extremely dangerous.
As to the deeper philosophical question of what constitutes the “heart of liberty””¦. that is a whole other question somewhat unrelated to the intent of my comment- but it is fascinating nonetheless. I honestly don’t have what I believe written down and ready to fire out”¦ but I do think the major weakness in the definition used in Lawrence is that it includes nothing regarding harm caused to others or society at large (directly or indirectly)”¦ it is wholly insufficient to define liberty as:
Because such a definition does not address any behavior or pursuit of liberty (as defined above) that may result in increased danger to others (increased burdens on others through damages to an individual’s capacity to support themselves (drug addiction, etc)”¦ and so on. If you accept the definition of liberty (which rejects any and all restrictions on liberty thus enshrining the false concept of “No Fault Freedom”) as an operating practice in the establishment of law (which is the question here)”¦ then you would violate this with any restriction”¦ laws against public nudity, drug abuse, etc”¦
The bottom line is liberty as defined in Casey and Lawrence is not, nor should it be, constitutionally protected as a fundamental right. It has no limits and has already been used to justify the denial of the very right to exist of all humans at a certain stage of development”¦ it is purely subjective and relativistic, ungrounded in the actual text of the Constitution. You see that, right?
Sophrosyne,
In Casey v Planned Parenthood, the court reaffirmed the three parts of Roe:
I believe that in light of part(2), the histrionics of your second paragraph are unwarranted.
Your first blockquote is missing ellipses. The two paragraphs quoted are in completely different parts of the ruling.
The entire paragraph from Casey v Planned Parenthood is:
Marriage, procreation, contraception, family relationships, child rearing and education are all protected from “compulsion of the State”, and rightly so. You see that, right?
You showed your hand with “some judges choose to ordain genderless unions” because the converse is state compelled gender expression, and while the fashion and professional sports… industries may approve of that compulsion, the majority of “leave me alone” Virginians and Americans may not. Your post does not demonstrate that you see that “law is a rational discipline”, but rather as a mechanism to impose your opinions on others.
Scalia is correct that the Lawrence decision ruled that homosexual sex acts are, “morally neutral” and that there is a legitimate interest in homosexual couples marrying (see “Why Marriage Matters”). You make a logical leap in turning marriage equality into “ANYTHING”. We’re talking about covenant marriage here, and I’m personally speaking for David and me.
I did like your second last paragraph and urge you to consider the impact of conspicuous petrocarbon consumption on others. If you perform a good faith analysis, you will see what behaviors actually harm the majority of the earth’s families. The liberty defined in Casey and Lawrence is precisely the liberty that we should be fighting for, and the freedom [petrocarbon consumption sic] that you take for granted is precisely the liberty that we should be questioning.
(btw Sophrosyne, are you married?)
I’m afraid to even ask this, but somebody has to. What on earth is a “genderless union”?
I meant “genderess union” in the sense that gender would no longer be relevant to marriage if it was redefined by some judge to no longer mean the union of the two complementary parts of humanity (the two genders/sexes- man and woman). Maybe not the most apt description but that was the intent.
Also, I must point out that your claim that “in light of part(2), the histrionics of your second paragraph are unwarranted” isn’t valid. This second part you reference is the infamous health exception, stating that “a confirmation of the State’s power to restrict abortions after viability, if the law contains exceptions for pregnancies endangering a woman’s life or health.” I presume you’re familiar with Doe v Bolton, which defined “health” so broadly (stating that “[M]edical judgment may be exercised in the light of all factors–physical, emotional, psychological, familial, and the woman’s age–relevant to the well-being of the patient. All these factors may relate to health”)… you can drive a truck through that and various lower courts have ruled as such, overturning numerous Partial Birth Abortion bans. Thanks to Doe you can’t have any meaningful restriction on abortion without a health exception, which has been interpreted by the courts to mean any kind of health, and any abortion doctor can justify the taking of any innocent life moments or months from birth. I am getting off topic here but the bottom line is this horrendous tragedy stems directly from the abuse of vague penumbras and the “sweet mystery of life” passage employed in the Court’s rational.
As to the protection from “compulsion of the State” regarding various family matters. Sure I agree with that in principle”¦ but what does it mean in practice? Does this protection somehow provide cover for the murder of innocent human life in a mother’s womb? Is it legitimate to somehow pervert freedom from “compulsion of the State” regarding Marriage to mean that marriage must be radically redefined so that the defining characteristic of the union of the two complementary parts of the human organism (man-woman) are removed? Marriage is no more compelled gender expression than the fact that when I go to use a restroom I must use the one appropriate for my gender”¦ because gender issues and differences are real and substantive”¦ this isn’t “compelled gender expression””¦ it’s a fundamental recognition of the differences between those of us with XX chromosomes and those of us with XY.
You still haven’t responded to my criticism of the Supreme Court’s “heart of liberty” definition as an operational aspect of legal jurisprudence and not Philosophy 101, specifically the fact that said definition does not address any behavior or pursuit of liberty (as defined above) that may result in increased danger/harm to others.
Do you both define liberty (as it should be defined in law, not some philosophy book) as the Supreme Court did here? Just curious.
Sophrosyne, Please refrain from off-topic discussions of “the murder of innocent human life in a mother’s womb”. We’d like to keep this discussion civil and “G” rated. Please open a Roe discussion over at TownHall and where you can fight over the definition of “health”.
As an operational aspect of legal jurisprudence, liberty means the right to be left alone. It means the right do define our own families without compulsion from the state. If the government claims that:
Then gee, who was it that brought the marriage equality cases before the judges? Nobody? The activist judges invented the litigants? Your very framing denies that there are litigants and that denies their liberty.
I apologize for seeming to going off topic but I truly think (obviously b/c of Casey) that abortion is directly linked to the Supreme Court’s definition of liberty which is the very focus of this discussion. That said, I respect that this is your blog and if you would like me to refrain from using these examples (which I believe to be extremely relevant), I’ll comply and if necessary post material on NOVA Town Hall.
I certainly don’t deny that there are litigants in these cases… nobody does! But just because someone wants something and is compelled to bring their case before a judge does not automatically mean they are being denied liberty or that their case has merit. I hope I am misunderstanding your point b/c if that is what you are truly saying then any litigation (no matter how frivolous) would equate to a denial of liberty.
Anyone has a right to seek redress in our court system”¦ but that doesn’t make their demands (in this case to redefine marriage) any more correct.
Since gender is an attribute of personhood that exists independently of any relationship (i.e., one does not become “gendered” by having sex with another person), no, I don’t think your term makes any sense.
You treat “complemetarity” between “the two genders” as if all men and all women are simply interchangable, and as if gender is the only important attribute by which two individuals could complement each other. This is an abstract idea that isn’t reflected very well in the real world. In reality, there is more variability in all measurable traits within gender categories than there is between them. Because of individual differences, each couple possesses its own unique complementarity. (Your framing of gender as the bipolarity of XX and XY is more doctrinal than biological, but that is beyond the scope of this comment.)
This attempt to shoehorn real people into an abstract design concept that elevates a single attribute (a person’s external genitalia) to a transcendent status is what I call “Insert tab A into slot B Syndrome.”
I think that you want to draw a bright line between law and philosophy only when doing so privileges your own philosophy. In your neat dismissal of the “silly and unenforceable law” overturned in Lawrence, you gloss over the fact that the case was before the Court because this unenforceable law was in fact enforced. Any such law on the books, however silly, is still enforceable. Cases are brought by litigants, and litigants are people – people who are sufficiently harmed that they are willing to go through the unpleasant and disruptive litigation process. State compulsion to not have sex with one’s partner is hardly frivolous.
If anyone has the right to seek redress, then do you disagree with legislation that would remove from the jurisdiction of federal courts certain types of litigation?
I don’t necessarily agree that it’s off-topic insofar as we’re discussing the nature of liberty, but I don’t think that the reproductive rights argument is exactly the same. It is arguable (although I am not making that argument here) that a fetus has personhood, and therefore there is a conflict between the fundamental rights of two people (and this is where you would wade into philosophy).
It is not arguable that you, or Dr. Dobson, or the straight couple down the street has a legitimate interest in criminalizing my relationship with my partner. To make such an argument is to deny my personhood – that is, my right to define my own existence. That right by definition doesn’t mean the right to do harm to others (as that would take from them the same right), but disagreement with or dislike of me doesn’t constitute such harm. My existence does not take away from you the same right to define your own existence.
In no sense am I saying that my criticism of your abstract model of gender should affect your right to define your own existence that way, only that it cannot be compelled by the state. If, on the other hand, you define your own existence by a perceived right to compel others to conform to your model (philosophy again), then we have a problem.