PERRY v. SCHWARZENEGGER, the opinion in the Prop. 8 trial, part I

A Federal district court in San Francisco, months after hearing witnesses and closing arguments, has declared California’s Proposition 8 unconstitutional. Proposition 8 had declared merely that in California the term “marriage” could be applied only to one man and one woman. It accomplished little more than preserving the appearance of a distinction between legally recognized relationships for one man and one woman, and California’s legally recognized relationships for homosexual couples (groups are yet to come, but in principle cannot be stopped if current trends continue).

The Plaintiffs in the case argued successfully that Proposition 8 and the old fashioned understanding of marriage violated the Fourteenth Amendment to the Constitution of the United States because it treats same sex couples differently than heterosexual couples. Of course, such different treatment was expected by the moral core and religiously orthodox core of nearly all cultures for nearly all of recorded history, but courts today assume we know better. The people of the past thought it was just as obvious that homosexual relationships were not like marriages as that burglary was not like entering your own home. Somehow we miss the difference.

The defendants argued that the will of the people should carry the day. In the big scheme of things this is a difficult argument, because sometimes the majority of people want the wrong thing. That is why our founders created a republic instead of a pure democracy. But then the founders would have been shocked by this outcome in a court of law and would have considered it a vicious refusal by the court to apply the law. The defendants also made the utilitarian arguments, which I believe to be true, that children are better off being raised by a mother and father, and that heterosexual relationships are more stable than homosexual relationships. The defendants also made the tactical choice not to present much evidence. I think they were more afraid of their witnesses being mocked for their ideas than of the lack of evidence for their side before the court. And indeed, because of the way our legal system works today, making an argument this court would have found persuasive is as difficult for us as it would have been easy for our ancestors.

The underlying problem here is one addressed by a number of Christian writers, including Dallas Willard and Nancy Pearcey: our society divides "reality" into the objective sphere of science on the one hand and the subjective sphere of religion and morality on the other hand. This is not really so. Moral truth and real religious truth are objective and knowable species of truth. But, on the basis of the alleged subjectivity of morality and religion, morality and orthodox Christianity are banned from consideration in making public policy. The judge in this case said:

“ A state’s interest in an enactment must of course be
secular in nature. The state does not have an interest in
enforcing private moral or religious beliefs without an
accompanying secular purpose. See Lawrence v Texas, 539 US 558,
571 (2003); see also Everson v Board of Education of Ewing
Township, 330 US 1, 15 (1947).”

And by “secular” they mean that arguments from any moral system not based on utilitarianism or pure reciprocity are also excluded. Naturally science cannot actually tell anyone what they "ought" to do - science measures and describes things and events in the experimentally and observationally repeatable material world, science says nothing about normativity. So public policy is made through a variety of shell games that involve elite manipulation of the courts or manipulation of the public, whichever works best. Practical political power and will are really the only criteria; though arguments to salve the dishonest intellect and to appeal to the passions and emotions must be made to keep up appearances. Materialist scientism, and instrumentalist faith in autonomous humankind is the established religion of our government. We no longer have the Rule of Law because the Law above the Law - the reason, universal eternal truths, and moral order of God are disregarded unless they too can be smuggled in, through some appealing way, as "tradition."

This situation is extremely dangerous. If the current paradigm exhibited by the federal trial court in San Francisco prevails, it may take decades, but extreme damage to the souls of our children and the character our civilization is inevitable. On the other hand, if people yield to the temptation to use power politics, or worse, violence, to impose their will on the elites who back the current standard, the precedents set could prove just as devastating to freedom, reason and truth in the long run as the immoral rule of judges is becoming in the short run. May God guide us in how to unravel the maze of evil we have made for ourselves by our failure to clearly teach and maintain the truth as the truth in all areas of life.