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Last week in the SANE Email Update we delved into the question why liberals, conservatives, and independents are all progressives at heart. If you would like to go back and review that analysis, we have posted it at the
SANE Works for US web site log in page. This week we
highlight an essay by David Yerushalmi discussing the latest assault on this country’s longest-standing Judeo-Christian institution. It follows.
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The legal dynamic duo of Ted Olson and David Boies have made the news and the talk-show rounds promoting their lawsuit on behalf of gay marriage. Olson, a conservative Republican former Solicitor General, and Boies, a liberal Democrat who is known as a litigator’s
litigator, were once adversaries locked in the epic battle over Florida chads, which ultimately played out in the U.S. Supreme
Court in Bush v. Gore. Now, the two men have joined forces to beat back the gay-bashing Christian hordes in California who dared to amend the state constitution to insist that marriage should be preserved as a union between one man and one woman. The dynamic duo’s legal case, laid out in interviews and various op-ed essays, notably by Boies in a July 20th oped in the
Wall Street Journal, is based on a three-tiered argument that
begins at the level of social science, elevates itself to science
proper, and then concludes at the moral level. Robert J. Loewenberg of the Institute for Advanced Strategic
& Political Studies has termed this argument the Reciprocal. Meaning, if you can reduce the basis of a political discourse to science or mathematical symbol, you win because science permits no discrimination based upon value judgments.
Alternatively, or reciprocally, if you reduce the argument to all that
is not science, that is opinion or belief, you win as well since society
may never discriminate between any two things once the differentiation is understood as unscientific. The dirty little secret of the Reciprocal is that nothing today is admitted to being anything but science or belief. In a word, the Reciprocal rules all. Point-game-match.
Thus, the first leg of the dynamic duo’s case for the constitutionality of gay marriage is that there is no “legitimate” policy to deny homosexuals the “fundamental right” to marry a same sex
partner. By “legitimate” they mean rational, as in validated by data
collected by social scientists. Proposition 8 in California, therefore,
is illegitimate because there is no basis in social science to prohibit
gay marriages. This reliance on social science as the poor cousin of the “hard” sciences is a respected argument in constitutional jurisprudence,
but it has a difficult time standing fully on its own without some help from its more pedigreed hard science cousins. We will see this shoring up with hard science momentarily. The specific social science argument in favor of gay marriage is that since gay unions have now been accepted as commonplace and we see no measurable (i.e., empirical) social, economic, or political harm in these unions, any moral argument against gay marriage is irrational. Even more specifically, since heterosexual marriage and family life is not affected deleteriously by granting homosexuals the same privilege, society’s bias in favor of opposite sex marriages that will produce naturally conceived children remains unharmed by eliminating any legal bias against homosexuals.
But, social science only goes so far, and the reason is that statistics applied to social phenomena are notoriously subject to manipulation. The Christian right often comes into court loaded with its own empirical-statistical evidence about the negative influence homosexual marriages will have on the children of these unions, typically adopted or artificially conceived. While the Christian social
science advocates are at a distinct disadvantage since most social scientists with academic degrees will amass as a “consensus” in
favor of the progressive no-harm side, the very hint that the social
sciences are really nothing more than beliefs dressed up in empirical fact allows the ‘hard’ sciences to make an entry and rescue the argument from uncertainty. The hard science argument in this case is based upon biology. Human sexuality is a fact of genetic composition, which in turn is a product of evolution. Even the age-old argument over homosexuality—nature or nurture or some combination thereof—has been denuded by evolutionary biology’s newest “discovery” that man like all matter is locked in an ever-evolving environmental process that precludes any rational person from claiming that evolved behavior X at time Y is somehow more moral or better in any scientific way than behavior not-X.
In the Journal op-ed authored by Boies, hard science’s shoring up is accomplished by declaring that even if homosexual marriage were in fact perceived by an overwhelming consensus in our society as a bad thing, homosexuality is a status determined by evolutionary biology and not subject to correction.
Once homosexuality has been turned into something akin to race (i.e., biological), all past discrimination becomes evil (meaning, scientifically irrational) and the legal argument, based upon
20th century jurisprudence, has been converted from rational
basis to compelling interest. Now the state must show that gay marriage threatened harm to a compelling state interest and that there was no other less discriminatory fix available to protect this interest. As you can well imagine, the compelling interest argument is one that a state rarely musters successfully.
Having moved the argument from the rationality of statistics in the social sciences to the compelling certainty of biology, the dynamic duo’s argument finally comes to rest on the other side of the Reciprocal—morality or belief. This tack grants that a large segment of American society views the world through a Christian (sometimes referred to as the Judeo-Christian) moral lens and that this group has a First Amendment right to cling to their belief. However, because religion is mere opinion or belief and lacks the certainty of
science or even the rationality of the social sciences, it can never be
the basis for a discriminating law.
The problem with this argument against morality-based legislation, however, was foreseen by Justice Anton Scalia when the Supreme Court first appeared to embrace it in Lawrence v. Texas. There the Court, with Justice Kennedy authoring the majority opinion, concluded that the state’s moral basis for prohibiting homosexuals from engaging in sodomy was not rational. Left unsaid, but certainly implied, is the conclusion that this morality legislation prohibiting homosexual sodomy was not supported by either the hard or soft sciences. Without that “objective” rational basis, morality alone is an arbitrary and uncertain basis to deny a man his liberty to engage in private consensual sex with the object of his choosing.
In his dissent, Justice Scalia described the societal dilemma this new a-moral jurisprudence presented:
State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bower’s [the Court’s earlier decision on anti-sodomy laws] validation of laws based on moral choices. Every single one of these laws is called into question by today’s decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding. |
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In other words, America’s constitutional law is now understood
to prohibit laws forbidding behavior touching upon sex or any
other “fundamental liberty” on moral grounds. Morality standing alone is mere belief, uncertain, and as such irrational, or at least not
rational. While Justice Scalia provided a list of horribles that may no longer be penalized, his own listing failed “to cabin the scope” of the
Court’s almost full-throated embrace of the Reciprocal.
Given the Court’s rejection of morality standing alone as a valid basis for criminalizing what most would consider aberrant or even deviant sexual conduct, what does the future hold for the most “immoral” of sexual perversions, i.e., pedophilia?
A year before Lawrence, in Ashcroft v Free Speech Coalition, the Court was comfortable assuming that sex with children was “abusive” and, as so defined, “an act repugnant to the moral instincts of a decent people”. We must suppose, enlightened as we
are by Lawrence, that what saves laws against pedophilia from
being declared unconstitutional are not “the moral instincts of a decent people”, but rather the abusive nature inherent in the
child-adult sexual relationship. Thus, social science can be employed to make the argument that children lack the maturity to consent to such behavior and that sex with a minor will result in substantial emotional harm to the child, which in turn will cause societal harm as the individual harm aggregates.
But the question must be asked: does science save us here? Is the Court right about the lack of mature consent necessarily constituting abuse, and is it inevitable or even probable that
adult-child sex results in “empirical” harm to the child or to society?
Let’s begin with the consent issue. Do we as a society worry about a child’s inability to consent if adults wish to smile at the child? Do we worry about “consensual” waving at a child or playing peek-a-boo with an infant? Or, do we bother with consent issues when a parent
convinces the child to brush her hair or to take a bath? No. And the reason we don’t is because none of these acts carry any “moral” opprobrium. They are what we might call morally neutral.
Similarly, a growing number of Americans don’t consider sex an act laden with moral overtones. Indeed, the atheist essayist Christopher Hitchens argues that Christian morality has
destroyed man’s freedom to enjoy sex by imposing all sorts of
religiously engendered taboos. So, why isn’t sex like washing your
hands?
The answer, of course, is because our Judeo-Christian moral foundations say it is properly an intimate and essentially holy act to be vested in the divinely sanctioned institution of marriage between two adults of the opposite sex. Now, it is true that much of this Judeo-Christian foundation has eroded, but enough remains
to inform us as a society that certain acts are “repugnant to the moral instincts of a decent people”.
But, Muslims who follow their prophet Mohammed, who, according to Islamic sources married a six year old girl and consummated the marriage when she was but nine, find nothing wrong in forced
marriages and therefore sexual relations with young prepubescent
girls. The only reason Muslims would today find this behavior
reprehensible is because they have absorbed Judeo-Christian standards (one reason to applaud colonialism).
Yet, Muslims are not alone in this rather approving attitude toward adult-child sex. In Japan, the national criminal code sets the age of consent at 13 (which is raised by law in certain local jurisdictions).
So, there are certainly many people and societies who don’t view adult-child sex as “morally repugnant”.
What this means, of course, is that as a society we are concerned about coercive consent in sexual relationships because we
have labeled sex something other than brushing our teeth. By imposing our “religious” filter on the act, we have elevated consent”
to some moral high ground. Yet, if we were to remove the religious or subjective moral filter and rely upon science, any claim about the morality of pedophilia based upon the “moral instincts of a decent people” is on its face vacuous.
Devoid of our unscientific “moral instinct” unique to a “decent people”—at least in our case that means the Judeo-Christian
moral instinct—you can know nothing about the virtue or vice of
pedophilia.
Indeed, if we move onto the second argument, which claims that there is a rational, empirical basis for a secular law against pedophilia, the logic is at best tentative and at worst circular. The tentative argument rests on a social science analysis of the individual and societal costs of such behavior. But, this means that
if science can marshal enough empirical evidence to show that
consensual, non-violent, adult-child sex is not harmful, the rational
basis for such laws would evaporate. Indeed, social scientists have
already gathered empirical evidence which suggests that child-adult sex at a young age, even in our current religiously-biased society, does not necessarily lead to subsequent trauma and this, the researchers argue, should lead to a more nuanced and scientifically enlightened approach.
(See, Rind, B., Tromovitch, P. & Bauserman, R. (1998). “A
Meta-analytic Examination of Assumed Properties of Child Sexual Abuse Using College Samples”. Psychological Bulletin, 124(1), pp.
22-53.)
But more than tentative, this argument turns out to be circular.
What would happen if our society adopted the secular, scientific view of sex?
That is, sex is not a divinely sanctioned act between a married man and woman but simply a biological urge to reproduce and play in the Darwinian arena of survival.
Arguably, the only reason adult-child sex might cause a child emotional or psychological harm is because our society starts
with the Judeo-Christian premise about sex and such behavior. If
children were taught by their guardians, peers, and society at large
that sex was like brushing one’s teeth, how could they be traumatized by it?
What this means to the secular “social science” adherent is that pedophilia is not morally wrong because that characterization is meaningless to science and wholly subjective and arbitrary as a social norm. Indeed, given the science-belief Reciprocal, we are but one vote away from embracing a moral positivism predicated
upon science devoid of Judeo-Christian foundations. In this way, we (as in a majority) could merely agree (democratically of course) to treat sex of all types like brushing your teeth. It might not be something we’d do in public, but it certainly ought not to carry any moral opprobrium. A child who had sex at age 5 or 9 would be like a child who brushed her teeth at that age and of absolutely no concern to society (presumably it would still make sense to make it a crime to cause a child physical harm).
But alas, this whole discussion becomes absurd because no decent Jew or Christian would tolerate such a view of the world. And even those among us who reject such religious affiliations understand still today that child-sex is morally repugnant. But this is so because we as a people have embraced the Judeo-Christian moral compass even as so many mindlessly mouth objection to it.
Yet with each passing day, with each scientific advancement or “progress”, we lose sight of that compass. And, to remove that compass from us altogether—as the Court has done in Lawrence
and as our dynamic duo suggests we do now with the institution of
marriage—is to render our society no society at all but a mass of
homogenous solitary particles of matter combining in endless but
ultimately meaningless ways, bound only by the laws binding all matter, everywhere.
And, as all political societies progress closer to this certainty of the science-opinion Reciprocal devoid of any common faith in transcendent truth, we move inexorably closer to the Reciprocal’s
political articulation in the science-democracy one world order.
And, it is not hard to predict the future.
Today, to speak in public of the moral abomination of homosexual conduct is to be set up for ridicule and, in some jurisdictions in Europe, possibly an indictment for hate-speech. But this was not always the case. Just a few years ago, it was a crime to engage in such behavior. As was the case with adultery and other such “moral offenses”. But in the science-democracy political order, we embrace “scientific advancement” as a measure of both time and social-political progress. In our new world order, we view technological advancement as human advancement simply. We have reduced “being” in human being to a historical ontology based upon the movement of matter. In a word, we have rid ourselves of what
it means to be Man and replaced it with literally nothing.
_________________
David Yerushalmi is
a trial attorney specializing in public policy and constitutional
issues.
He serves as General to the Center for Security Policy in
Washington, D.C., one of the nation’s leading national security think
tanks founded by former Reagan administration official Frank J. Gaffney, Jr., and has been Of Counsel and Senior Legal Advisor for Policy Affairs to the Institute for Advanced Strategic & Political Studies (Potomac, Maryland) since 1988.
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As always, those of us at the
Society of Americans for National Existence continue our focus:
To strengthen America’s
national existence by probing
a new and deeper discussion of the issues
others fear or just avoid. We are
convinced that with integrity of
purpose and thought, graced with civility,
the SANE message will pierce
the fog that lies heavy on the ground.
All the best,
SANE Staff
Society of Americans for National Existence (SANE)(sm)
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