Thursday, November 19, 2009

Oh, Texas. Now What Have You Done?

I'm on my usual winter hiatus, but I still watch Stewart and Colbert. Colbert pointed this out last night and The Daily Beast gave me the specifics.

Did Texas Outlaw Marriage?

Texas may have become the largest singles meet in the nation—without anyone realizing it. Barbara Ann Radnofsky, a Democratic candidate for attorney general, says that a clause in the 2005 constitutional amendment banning gay marriage may have, in fact, banned all marriage. Subsection of B of the amendment reads, "this state or political subdivision of this state may not create or recognize any legal status identical or similar to marriage," the wording of which, Radnofsky argues, "eliminates marriage in Texas." Current Attorney General Greg Abbott's spokesman said that the amendment is "entirely constitutional," and Radnofsky admits that it's unlikely that marriages will be disassembled based on the clause. But she still believes the wording is a "huge mistake." "Whoever vetted the language in B must have been asleep at the wheel," she said.

Steven Colbert failed to addressed this because he was too busy pointing and laughing (as well we should) to note the cognitive problem that lead to such a ridiculous, if "entirely constitutional" outcome.

Whoever vetted and/or wrote the language in Subsection B has a problem. The problem is that they believe that Marriage is a state of union defined by God, and the State has no business intruding into it. Now, I would concur; I don't happen to believe that Marriage - or any contract or agreement between free citizens is the business of government to let or hinder. The Courts exist to determine whether such contracts are fair and uncoerced, to determine the facts of disputes under the terms of the contract, but not to judge whether free persons have a right to negotiate whatever contractual relationship they choose. That is the heart and soul of contract law, as I understand it, and one of the very most basic reasons for the development of government and law.

What is assumed and unsaid here is that there is A Higher Law that Transcends The Laws Of Man, which properly binds everyone regardless of man's law or individual will. Now, while that assumption has obvious problems with the Establishment Clause and the concept of the separation of Church and State, it's not the truly fundamental problem. It's not even that this amendment is intended to achieve the effect of establishing a moral diktat regarding marriage, which is no doubt the way most people think of it, regardless of their position on the matter.

The real problem is that the people who did this simply took that assumption as a fact, as a law of nature, something that does not need to be thought about, considered or even acknowledged by the human law they were fiddling about with. This was not the result of religiously mandated thought. This was the result of a religious presupposition preventing thought in a way that produced a result that is quite predictable to anyone who didn't have that particular mental block. That is the problem - and a very widespread problem - illustrated by this particular example in an amusingly clear and obvious way.

This is  what happens when theocratic authoritarians are allowed into public office and are permitted domination over those who do not bow the knee and drop five dollars in the collection plate. 

The thought processes and assumptions of those who think of themselves as blessed with greater vision by a higher power don't well apply to the practical details of our messy consensus reality, which must be governed upon the basis of what real people wish and need to do; how they will behave in their great masses, regardless of any particular view of how they ought to behave.  Indeed, there is no singular vision about the various oughts and shouds. Human law has always had to settle for defining the sorts of behavior that will not be tolerated, regardless of cause or justification. Higher Law - let us presume such a thing for the moment for the sake of honoring the sincerity of those who champion it - must be seen as a higher standard than the common run, a thing that society does well to encourage, to applaud, even to celebrate in it's diversity when it is positively manifested in the exeptional examples that inspire us all.


Maintaining the clear distinction beteween "ought" and "is" is to the benefit and advantage of both church and state, for when one becomes the agent of the other, the purpose of neither is advanced. Examine history for examples, should you care to. For myself, I suggest that Marxism, Calvinism, various Islamic Fundamentalisms and the entire, checquered history of Catholocism, which has been variously Church and/or State at various times and various places to be remarkably instructive of the wisdom of keeping the realms separate.

A mindset that dictates to a person with their hands upon the levers of power how people ought to behave in the service of a cause or a faith there is no right nor reason to believe to be universally shared cannot even fathom nor anticipate the damage they do in the name of their cause.

I say this without judgment of the supposed cause or the need to judge it's merits, for the results are clear, and should be an illustration to all of the price paid when people of faith think it to be a good thing to impose their faith on others. The result is never that which the teachings of those faith would point out as a good result, to the benefit of faith or humankind, and really tells us very little about the merits of that faith or system.

But it tells us a good deal about human nature and the danger of attempting to serve two masters.

This time, the outcome is merely absurd. This time, nobody died. This time, no families have been ripped apart. This time, no-one was imprisoned for the gratification of moralists, in the name of some form of social hygene.

But all these things have been done, and many such efforts are championed by the same sorts of people - people who are literally blind to the damage they do.

Those who seek the comforts of a church, the sure answers to a complex world surely deserve the companionship and council of the like minded, for their mutual improvement. Nor should those who do not feel that need take their own somewhat stridently moralistic urges further than a firm, imperative "no."

In a civil and civilized society, we should all be free to say "yes" or "no," according to our own needs as best we understand them, with the greatest possible range of advice and viewpoint that a civil society is naturally equipped to provide, without the need to feel any obligation to explain why, so long is there is no breach of the peace.

Meanwhile, a public official must be accountable to all their constituents; not merely those who claim the same faith. Indeed, a public official is just as accountable to the coke-addled whore as to the pillar of the community, for in this world, in these Constitutional Republics, there is no Morals Clause. Nor - as Conservatives of all sorts are prone to say when the point serves them - are there any real "democracies" where "the will of the people" in it's transient passions are allowed to hold sway. 

That is because the mob is easily led by demagogues and fools and civilizations that persist do a great deal to discourage their formation. And that is why, in this season of my somewhat sour discontent, I hold out little hope that the current rampaging mob will leave much in it's wake, save, perhaps, a salient lesson to the rest of humanity regarding the triumph of politics over common sense and common decency - and why both of those values need to become far more common.

Once the rubble - metaphorical or literal - stops bouncing, perhaps it will.
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I delayed posting this while I read this paper. It's dense, but thought provoking and while it did not provide me any convenient sound-bites, it's probably going to fuel a lot of thought in the future.

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