Its central focus on emotions erodes moral principles and law.By Matthew J. Franck from the April 10, 2009 edition
Princeton, N.J. - When the Iowa Supreme Court proclaimed last Friday that gays have a right to marry, it insisted that its groundbreaking decision rested squarely on the state constitution's equal protection clause.
In reality, the court's bland overturning of foundational moral principles and many centuries of civilization shows what happens when judicial arrogance becomes second nature: It transforms into smug self-deception.
By allowing feelings and desire to replace moral reasoning â€“ or at least a fair-minded reading of the constitution â€“ as the basis for judgment of lawful public morality, the Iowa court, like American judicial power more broadly, has burst free of all constraints and is now in the grip of a banal routinization of tyranny.
"Tyranny" is a strong word, but consider:
â€¢In the 69-page ruling, the actual words of the Iowa constitution receive no real analysis.
â€¢The court rejected any argument for the natural family as the best setting for child-rearing as a mere "stereotype" â€“ and this in a dismissive footnote, no less.
â€¢The judges essentially said only they, not democratic majorities, could decide "the standards of each generation," which the US Supreme Court (wrongly) said in 2003 are the touchstone for understanding what the Constitution says about equality.
Regardless of where you stand on gay marriage, at least Vermont decided the issue this week the right way: democratically. But even in that case, the state's choice came only after a decade of civil unions that had been forced on Vermonters by their supreme court.
The Iowa court put the burden of justification on the state: It had to show good reasons for excluding gays from marrying. That maneuver masked the court's weak argument for same-sex marriage, which boils down to this: Because some persons are "sexually and romantically attracted to members of their own sex," and because some of those persons have entered into "committed and loving relationships" with each other, they are entitled to "the personal and public affirmation that accompanies marriage."
From this vantage point, the feelings individuals have for one another are the authoritative wellspring of moral principle. Emotion and desire are certainly important, but without more, they are a treacherous foundation for law and public policy.
Marriage and family are a moral institution â€“ the teacher of right conduct between the sexes, the school of morality for the young, the founding scene of our moral obligations, the refuge from a wider world where respect for those obligations is a much chancier proposition.
These may sound like lofty ideals often unrealized, but that is both the point and beside the point. Society has a profound interest in encouraging the successful formation of marriages and families that point by their nature toward the achievement of these ideals.
It is essential that public policy on marriage turn from love, and from lovers' felt need for "affirmation," to consider what reasons can be given for this or that way of arranging the family that makes a claim on our attention.
Are all "relationships" created equal? Are all of them equally conducive to human flourishing and the betterment of successive generations? How many men and/or women does it take to fulfill marriage's vital functions? Are children best prepared for healthy, responsible adult lives with both a mother and a father?
The laws of marriage and family, of divorce and custody, are efforts to address such questions rationally, if necessarily imperfectly, with a priority placed on optimizing the moral health of each party. In the nature of things, someone's preferred notion of a "relationship" that needs "affirming" would seem to be peripheral at best.
To the Iowa court, it was apparently central. When desire becomes the foundation for a right, beware. Nothing in what passes for reasoning in Justice Michael Cady's opinion can stand against the next claimant â€“ perhaps the polygamist â€“ who presents himself as needing government affirmation of his consensual relationships. This is not a slippery slope; it is a levee breaking in a spring flood.
To address the practical grievances â€“ such as lack of hospital visitation â€“ that gay couples who can't marry face, some courts and legislatures have adopted types of civil unions. But such grievances can be easily accommodated through normal contract law. Civil unions, on the other hand, amount to special provisions for a special class of people. And because they deprive same-sex couples of the term "marriage," civil unions themselves become a cause for complaint and eventually a stepping stone to outright gay marriage
Turning to its strong suspicion that "religious opposition" was behind the state's ban on same-sex marriage, the Iowa court rightly held that the state government is forbidden to choose between rival religious beliefs. But the court went further, affirming that "[s]tate government can have no religious views, either directly or indirectly, expressed through its legislation."
This suggests the court is incapable of entertaining the most elementary distinction between matters of theology, faith, and worship, on the one hand, and matters of moral reasoning springing from religious conviction on the other. What the opinion calls "religious opposition to same-sex marriage" would more accurately be described as "moral opposition to same-sex marriage springing from religious sources." It would not go too far to say that religion is the wellspring of moral thought and action in our civilization. America's own Declaration of Independence â€“ source of what President Lincoln called "our ancient faith" â€“ calls upon the Creator as the giver of all our fundamental rights.
Because of the diversity of religious commitments in our society â€“ and because coercion in matters of faith and practice violates our constitutional and dominant religious morality â€“ we must express our moral opinions to one another in a shared language of reason and argument.
This does not and cannot mean that the connection of our moral arguments to our religious sentiments is severed when we meet in the public square. But when all the arguments have been heard, the moral view that prevails at the ballot box and in the legislative halls is entitled to have its way in public policy, barring any explicit constitutional obstacles to its enactment.
The "separation of church and state" is not one of those obstacles. If it were, no law with any moral purpose that happened to coincide with the view of any religious community could ever be upheld.
The Iowa justices evidently believe that if a moral argument finds support in any religious commitment, then the promulgation of that argument in law is a violation of the principle of religious disestablishment. This is logically fallacious, historically illiterate, and politically brutish.
Recall that juxtaposed with this unremitting hostility to religiously supported morality is an embrace of the morality of feelings. Yet in the Iowa court's view, religion is itself reduced to mere "sentiment," and so the justices wind up incoherently privileging one kind of feeling over another. Those who desire to marry win out over those who desire to "exclude" them from marrying, and that's that.
Lost from view is the true ground of our common public morality: reasoned judgment about the natures of things and the good of human persons, families, and communities. About such matters, religion can be instructive (to say the least), while a desire to "affirm" our "relationships" cannot be. And so, in both its reductive approach to religion and its empty invocations of feelings, the Iowa Supreme Court has done an injustice to religion, to the possibility of lawful public morality, and â€“ yes â€“ to our relationships themselves.
Matthew J. Franck is professor and chairman of political science at Radford University and a visiting fellow in the James Madison program at Princeton University. This essay was adapted from a longer version that was originally published by The Witherspoon Institute's "Public Discourse."