Thursday, November 24, 2016

How are the big issues decided? Obergefell vs Hodges 2015

In 2015 the Supreme Court of the United States decided in favour of homosexual marriage (Obergefell vs Hodges). The decision was a close one (5-4). Both the majority opinion and the dissenting opinions were argued for in terms of first principles, which gives an unusually clear insight into what is thought to matter by those who matter. Let's begin with the majority opinion. The introduction to the ruling states:
The fundamental liberties protected by the Fourteenth Amendment's Due Process Clause extend to certain personal choices central to individual dignity and autonomy, including intimate choices defining personal identity and beliefs...

...The first premise of this Court's relevant precedents is that the right to personal choice regarding marriage is inherent in the concept of individual autonomy.

The more detailed part of the ruling begins as follows:
The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.

The petitioners in these cases seek to find that liberty by marrying someone of the same sex and having their marriages deemed lawful on the same terms and conditions as marriages between persons of the opposite sex.

I'm going to pause here, because this is the state ideology in a nutshell. What matters, we are being told, is a liberty to define our own identity. This liberty must extend equally to all persons. That is how we get to be autonomous and to have dignity as a person.

Justice Roberts in his dissenting opinion makes an obvious objection to this view. He writes:
The majority opens its opinion by announcing petitioners' right to "define and express their identity." The majority later explains that "the right to personal choice regarding marriage is inherent in the concept of individual autonomy."...One immediate question invited by the majority's position is whether States may retain the definition of marriage as a union of two people...It is striking how much of the majority's reasoning would apply with equal force to the claim of a fundamental right to plural marriage. If "there is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices," why would there be any less dignity in the bond between three people who, in exercising their autonomy, seek to make the profound choice to marry?

Isn't this right? If what matters is "a right to personal choice regarding marriage" that is "inherent in the concept of individual autonomy," then isn't my dignity being infringed upon if I cannot choose to marry two women?

And why should marriage be a lifelong union if what matters is a right to choice regarding marriage? If I want to choose to leave one woman and marry another, then aren't I being a good liberal in doing so? And why should marriage be an exclusive union? If my autonomy is at stake, then why shouldn't I define my identity in terms of having both a wife and a lover on the side? For that matter, why should the biological connection between myself and my children matter? Aren't we all autonomous individuals, defining our own identity? So why should paternity matter that much? Or maternity for that matter? And why should I be held to owe any duty of care to my wife or to my children? If I were to follow the logic of the Supreme Court, then I have no duty of care, but only a free choice to care, if that is what fits with how I choose to define my personal identity and beliefs.

And if the aim of my life is to maximise my autonomy, in which I have the greatest possible freedom to choose to act as I wish, then why would I even contemplate marriage in the first place? Why wouldn't I choose to live alone, free to pursue a single man/woman lifestyle, not having to compromise myself for another person?

Marriage only makes sense if the guiding principle of life is not, in fact, the idea that our dignity comes from a personal autonomy to define ourselves as we wish. Nobody limits themselves to one other person for the sake of autonomy. And you would be crazy to commit to parenthood in the belief that you would thereby maximise your personal autonomy.

When men believe that being a paterfamilias really matters, that it has meaning, then marriage flourishes. Men commit to this role, not out of a belief in autonomy, but because they believe that in doing so they are upholding some important part of their own manhood, one necessary to the wellbeing of their wife and children, and to the family lineage and national tradition that they belong to and identity with.

Family cannot be unsexed. It is a procreative union of a man and a woman that cannot endure unless men are absolutely persuaded of their own necessary role as husbands and fathers within it (and are confident in the support of the state in this role).

Homosexual marriage has the effect of unsexing the family. It forces us to believe that whether a family has a man and a woman, or two men, or two women is all the same. Therefore, a man being a man is of little consequence when it comes to family life. It means that a man is not expressing anything significant about himself as a man when it comes to what he does in or for a family.

Do we men really believe this to be true? Is the homosexual view really the truth about marriage and family? Is being a man something that is only incidental to our lives? Or is it perhaps something that is not expressed within a family, but only outside of it, in some other sphere of life? Could that really be the truth of things?

I just don't believe that this will ring true to most men. Most men have a profound experience of the way that men and women are called together to be in a procreative union with each other. It is part of the warp and woof of reality itself. And most men too have an instinct toward expressing some part of their manhood within a family, as a husband and father, and will, in most circumstances, be motivated to fulfil this instinct, even if this constrains their autonomy.

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