Screeds
Thursday, September 02, 2004
Broken Threads
May 18, 2004
One of the strongest arguments for conservatism about the law—that is, for extreme caution in legal enactments, including the revision of laws by judicial pronouncement—is the Law of Unintended Consequences. A legal change that makes something permitted, compulsory, or prohibited cannot guarantee that the results will be desirable. America has struggled with this lesson for its entire history, and continues to struggle with it today.
Legal changes that touch on recognized rights and fundamental institutions have the greatest potential to invoke disaster. Sometimes, the prospects for a destructive backlash are right out in the open, easily seen and comprehended by anyone who takes an interest. In this connection, the most telling and painful of all examples is the American experience with slavery and its conclusion, the Civil War.
By permitting the continuation of the institution of slavery, the Founders allowed slave owners to assert a property right in human flesh, at a time when property rights were taken quite seriously. Throughout the first half of the Nineteenth Century, this posed an important stumbling block to the peaceful dissolution of the “peculiar institution.” Opponents of slavery were infuriated by the suggestion that slave owners should be compensated for the loss of that property right, while slave owners were incensed at the idea that they could be shorn of such important assets without compensation, in clear defiance of the Fifth Amendment. Much of the sectional tension over slavery arose from a property-rights-based outcropping of slavery: the Fugitive Slave Act. Despite the ire the Northern states felt over it, it was an utterly logical extension of the property right granted by permitting slavery to exist at all, an application of the Full Faith And Credit clause of the Constitution to that right.
Part of the destruction wrought by the Civil War was the damage done to the concept of property rights by the uncompensated emancipation of the slaves. It was unavoidable once war had begun, but so was the legal and social damage it caused. Ever since, the sanctity of private property has been under siege.
Property is one of the great binding threads of a free society. All freedom is founded on the institution of private property. No other right—not even the right to life—is safe if property rights are not respected. Yet the thread frays ever closer to breaking completely.
As of yesterday, another of the critical threads has come under attack. When the county and municipal clerks’ offices opened yesterday in the Commonwealth of Massachusetts, there were long queues of homosexuals waiting at them to demand marriage licenses.
Palace readers will be aware that some months ago, the Massachusetts Supreme Judicial Court ruled that, as a matter of equal protection under the law, homosexuals cannot be denied marriage licenses. The debate over what this would mean for the institution of marriage has raged ever since. As of yesterday, we have entered the “civil war zone” of the subject: that state of affairs in which, no matter how things fall out in the long run, some damage is unavoidable, and major damage is distressingly plausible.
The Massachusetts legislature has proved incapable of dealing with the matter. It could reach no agreement on an amendment to the state constitution that would preclude homosexual marriage yet command the necessary votes. Now that there are homosexual couples whose marriages are legally recognized in Massachusetts, it’s only a matter of time before such couples press Full-Faith-And-Credit claims to have their marriages recognized in every other state in the Union, including states that do have legal barriers against such marriages.
Can two persons granted marital status in state A legitimately be denied that status in state B? Not if marriage law and divorce law are to remain consistent. So homosexual appellants’ case for having their marriages honored throughout America will be very strong.
Moreover, and far worse, even if a marriage-defining amendment to the federal Constitution should be passed this coming year, the Constitution’s prohibition on ex post facto laws would prevent the delegitimization of homosexual marriages already formed. Future homosexual couples would point to those marriages and ask, “Why them but not us?”
We have yet to address the social damage that will be done by the destruction of the meaning of the marriage contract: society’s method, recognized for at least two thousand years, of shielding vulnerable women and minor children from male caprice. If homosexuals are to be recognized as legally married, there will be little reason for heterosexuals to marry. The institution cannot mean one thing for some couples and something else for others, according to the coupling techniques they favor.
There’s a particular irony in the power of the Full Faith And Credit clause in this connection. That clause had its first impact on marriage through the “Reno divorce,” which was much more commonplace before the loosening of the divorce laws of the other forty-nine states. Now it will be the blade that frays marriage to the breaking point.
Your Curmudgeon is no fortune-teller. He cannot say how many more of our society’s critical threads will be broken before the society itself collapses. Nevertheless, he fears.
However, there’s a bright side. With the Left so ardent for the application of the Full Faith And Credit clause to marriage, perhaps it’s time for the Right to co-opt the bandwagon for a campaign of its own: the right to keep and bear arms. That a legal firearms owner from state A should be vulnerable to arrest and incarceration for carrying his gun through state B has always been inexplicable. Yet it’s been the case for some decades, and has given rise to some appalling miscarriages of justice.
The Constitution nowhere mentions a “right to marry,” but it most certainly does mention a right to keep and bear arms, and in terms that leave no room for the states to demur. Let’s see how the Left likes Full Faith And Credit when it’s used to advance one of their perennial nightmares: a society of armed citizens. Their response might just reveal their “cafeteria constitutionalism” for what it is.
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