Thursday, October 9, 2014

The Witherspooners are kvetching about Judge Posner again

John Finnis
This time around it is John Finnis. Finnis is a law professor at the University of Notre Dame. Indulge me. I'll get to Finnis shortly. Last Saturday Frank Bruni observed in the New York Times that the Catholic Church is obsessed with gays and gay marriage. As Bruni pointed out the Church, through its various institutions, is quick to pull the trigger on any employee who dares to enter into a same-sex marriage. It is selective observation on an enormous level. I doubt that they are terminating employees for using birth control.

Taking that theme a step further I have to wonder what it is that prevents the Church and its most conservative adherents from accepting what seems to be a done deal? Nobody is forcing the Church to consecrate same-sex marriages. Beyond asking its followers to obey the teachings of the Church why are they throwing so much money and attention at this issue? Why are they insisting that the Catechism become incorporated into civil law? Isn't this the essence of shariah law that the same conservatives keep warning us about?

Since I haven't mentioned this in awhile, Witherspoon Institute was co-founded by Robert George and Luis Tellez. George, of course, is the Princeton professor and co-founder of National Organization for Marriage. Tellez is on the board of NOM. He is an Opus Dei numerary which means that he is not a priest but has committed to a life of celibacy.  I suspect that our friend Ryan T. Anderson is on that same path. Witherspoon's blog is called Public Discourse.


Getting back to Finnis, his polemic is titled The Profound Injustice of Judge Posner on Marriage. Finnis begins with:
Judge Richard Posner’s opinion for the Seventh Circuit Court of Appeals in Baskin v. Bogan, which invalidated Indiana’s and Wisconsin’s definition of marriage, has been widely acclaimed as ending the argument. According to Posner, all state laws defining marriage as between a man and a woman are patently unconstitutional. In his words, “discrimination against same-sex couples is irrational,” “groundless,” and the arguments put forward to justify it are “totally implausible.” Those who celebrate Posner’s opinion proclaim that his reasoning is unanswerable, and that it provides a template for all courts that will hear marriage cases in the future.
OK. Fine with me. Then Finnis goes off the deep end. He continues with “Indiana’s Argument: Optimality and Biological Parenthood.” You can all take it from there. The sole purpose of marriage is to crank out children and every child deserves a mommy and a daddy or, as Finnis puts it:
The argument’s two key, interlocked elements are optimality (what sort of child-raising is best for children) and biological parenthood (which results from sexual intercourse—the only form of sexual activity capable of generating a child). Indiana claims again and again that the two elements fit reality, and fit each other, in the belief and intention of its legislature, and in “the entire experience of Western civilization.”
We have seen this same material over and over again but one thing is always missing. Nobody has ever explained the correlation between same-sex marriage and who raises which children. What does any of this have to do with whether or not same-sex couples can marry?

I suspect that a fair number of children being raised by gay couples are from a prior marriage. Are they suggesting that same-sex marriage provides an inducement for traditional marriages to fracture? Seriously?

Married gay couples might adopt children and that's probably a good thing. Lesbians could opt for artificial insemination and some gay couples (with deep pockets) might go for surrogacy. However, take away same-sex marriage in its entirety and these committed couples might adopt, inseminate and surrogate the same kids. Nobody knows one way or the other. Opposite sex couples are certainly going to crank out exactly the same children regardless of the status of gay marriage. Right?

There is no defined link. Yet it is the foundation for the the primary argument against same-sex marriage. It is rubbish.

Speaking of children, Judge Richard Posner made the following observations:
  • The children of gay couples do not have many of the financial and emotional benefits that the children of married opposite sex couples enjoy.
  • By banning their parents from marrying, the state is responsible for disadvantaging those children.
  • The state is unable to explain what offsetting benefit to the state occurs as a result of disadvantaging those same children.
Posner gave lawyers for Indiana and Wisconsin ample opportunity to explain what the benefits were. Listen to the transcripts. Lawyers were simply unable to answer the simple question. Mr. Finnis doesn't even try. Indeed, Mr. Finnis makes some pretty good arguments for recognizing same-sex marriage. That is, if one doesn't pretend that gay couples aren't raising children. For example, he has a whole section of this essay dedicated to “Marriage Matters, Whether or Not Children’s Conception Is Intentional.”

I could not agree more. Marriage matters regardless of how or why a child is conceived. Children need the emotional and financial security that they get when their parents are married.

Finnis never seems to get around to the importance of marriage to people without children. Marriage is how we create a marital estate. We provide for one spouse if the other dies. The state recognizes this with the tax free transfer of property. Indeed, since the decision in Windsor the federal government recognizes marriages that are recognized by one of the states. Therefore, if the state refuses to recognize same-sex marriage then the state is deliberately creating a federal disadvantage for committed same-sex couples.

Next, Finnis drifts off into “The Problem of Polygamy.” It is a matter that isn't worth my time, your time or his time. It is irrelevant. So let's wander over to “The Most Sinister Result: Engineering, Buying, and Selling Children.”
The implications of this massive stimulus to artificial baby-production by surrogacy are profound. It may eliminate the supposed Posnerian surge in same-sex adoptions, perhaps even reducing today’s unimpressive rate. It will lead to the exploitation of poor women by rich men, more opportunities for child abuse, and the breakdown of incest norms. Newly increased numbers of children will be subject to the indignity of being conceived in order to be motherless (or fatherless), as products for the purposes and monetary benefit of his or her parents. This is a wound and, for not a few, a lifelong misery, scarcely compensable by the quasi-parents’ love and nurture.  These will be children produced with the express intention of depriving them of either their mother or their father.
Where is the evidence of this massive stimulus? Is it happening is Massachusetts? Where is the correlation to marriage? If there was no gay marriage who's to say that committed gay couples wouldn't do exactly the same thing? And what is so wrong about it in the first place if people are that intent on raising a child? All of the research shows that kids raised by gay parents are as healthy, happy and socially successful as their peers. But why must we accept the premise that same-sex marriage leads to a massive increase in surrogacy? We are, as they keep reminding us, a small percentage of the population.

If Mr. Finnis is so offended by surrogacy then he should lobby legislatures to ban the practice. Instead of focusing on theoretical consequences, the real issue is that unmarried same-sex couples are raising children. If those couples are able to marry then their children are better off. Real world. Observable in all 50 states without a leap of faith.

If you have the patience and can resist the temptation to through objects at your computer screen you might want to read this treatise in full. Mr. Finnis is an extremely erudite guy. Nevertheless, when these folks start to confuse theology with public policy they step off of the logic trail. The whole idea of having faith is to accept certain precepts while requiring neither logic nor proof. Judicial opinions, however, are an entirely different matter.

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