Wednesday, September 23, 2015

It Does Make a Difference! Words, Facts, History, Truth, Law, and Morals Do Matter Part 2

On this, the 700th anniversary of the Magna Carta, it is important to remember that it stands for the principle of a country of laws and of being under law, rather than under man.  We forget that we inherited this concept of law from the British and from the Magna Carta.  We forget that sometimes, especially in this era of America history, battles are fought regarding the separation of powers and what that means to how the government functions in a country ruled by law.

As Justice Scalia noted in his dissenting opinion in Obergefell v. Hodges, the U. S. Supreme Court decision in which same-sex marriage was deemed a Constitutionally protected fundamental right, a majority of nine men and women on the U.S. Supreme Court, all educated at Harvard or Yale Law Schools, determined that the definition of marriage, which had existed across all societies for many millennia, was inadequate, for the United States.  This notwithstanding the fact that almost all states had banned same-sex marriage just two or three years ago, whether by state legislatures or voter initiatives. It was not sufficient that the Congress of the United States, almost unanimously defined marriage as between one man and one woman in the Defense of Marriage Act less than ten years ago, these same justices also struck down portions of that law by the same majority in United States v. Windsor.

While it is generally accepted that the U.S. Supreme Court can speak with finality on Constitutional matters, including the interpretation of general and sometimes ambiguous terms or word in the Constitution, what is confusing to many in the public, and indeed in government, including the federal and state legislatures, is how words and concepts that have been understood in certain ways over the millennia, and in the case of United States Constitutional law for over 200 years, can be changed at will by the courts generally, and the U.S. Supreme Court in particular.  What I think the dissenting justices said in both Obergefell v. Hodges, and in United States v. Windsor,  was that we have become a nation under man (or at least five members of the Unites States Supreme Court) rather than a nation under law. So, as the Chief Justice wrote in his dissenting opinion in Obergefell v. Hodges, and as I quoted in a prior post:
     If you are among the many Americans -- of whatever sexual orientation -- who favor expanding same-sex marriage, by all means, celebrate today's decision.  Celebrate the achievement of a desired goal.  Celebrate the opportunity for a new expression of commitment to a partner.  Celebrate the availability of new benefits.  But do not celebrate the Constitution.  I had nothing to do with it.
Following the execution of the Magna Carta, during the rule of King Edward III (1327-1377), the British Parliament enacted six statutes that clarified the meaning and scope of the liberties guaranteed by the Magna Carta, interpreting the expression "law of the land" which appeared in the Magna Carta as the judicial procedures that protect a subject's liberties.  One of the these statutes, enacted in 1354, introduced the term, "due process of law" to describe the Magna Carta's procedural guarantees.

It might be easy to forget that these words, "Due Process" and "Equal Protection" in our Constitution derive their origin in that document of long ago, and for much of that history, contained a rather consistent meaning.  We forget that the Fifth and Fourteenth Amendments to our
Constitution incorporated the guarantees that no person would "be deprived of life, liberty, or property, without due process of law" from the model of the rule of law that English and American lawyers associated most closely with the Magna Carta for centuries.  Under this model, strict adherence to regular procedures was the most important safeguard against tyranny.

Perhaps we have also forgotten the humble recognition that ambiguities exist and must be respected.  But, we now live in an age in which ambiguities are preferred, and certainties are suspect.

I remember hearing when I first was appointed to the bench that the courts have no armies to enforce their decisions.  How true that is.  Moreover, we look to most professions, such as engineers, medical doctors, architects, computer programers, and the like, for the results that are produced from their labors.

Lawyers, and judges are different.  While it is true that the results of the labors of courts and lawyers are important, often what the media first focuses in on are those results.  Yet, it is the rationale that gives the work of courts at all levels the authority to which they might be entitled by the general public.  Thus, written decisions from the courts gain both authority and respect in the public on the basis of the logical reasoning provided and presumed objectivity, not simply the result.  When that reasoning appears suspect to a large segment of the population, the respect for the courts and the rule of law is diminished, and indeed, so does their authority.  This is why decisions, such as Roe v. Wade, decided by a very divided Supreme Court in 1973, remain controversial even today, and why the rights accorded by that decision continue to be the subject to litigation under many stripes today. Moreover, although there are claims to "settled law" regarding abortion, it is anything but settled.  On the other hand, Brown v. Board of Education of Topeka, Kansas [a unanimous decision of the Supreme Court, by the way, holding segregated schooling was unconstitutional] was both logical and moral in its reasoning and result.

It may be true that public opinion changes over time, and that there are segments of the public, demographically and statistically identified, which may support certain changes in the law or in rights accorded by legislatures and courts.  Whether or not these changes in public opinion are based on reasoned understanding of words, facts, history, truth, prior law, or morals, court decisions, especially those of the Supreme Court, tend to legitimize trends in which certain behavior, once considered immoral and not in accord with history and law, is now okay.  The fact of the matter is that Truth is not dependent upon popularity polls or popular movements.  Rick Warren, writing on this very issue of same-sex marriage, said: "A lie doesn't become a truth and a wrong does not become right and evil does not become good just because it is popular." "No revolution will last, including the sexual revolution. . . . Every lie eventually crumples under its own deception."

Of course, over time, the courts in the United States have ruled that "due process" also limits legislation and protects certain areas of individual liberty from regulation.  What is missing in the majority opinion in Obergefell v. Hodges, an opinion written by Justice Kennedy, but with which we can assume the other four justices who made up the majority agreed, was any clear legal rationale supporting any kind of definition of "due process," or "equal protection."  Rather all we have is a rather breezy statement that "these liberties extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and belief," and that "the right to 'marry, establish a home and bring up children' is a central part of the liberty protected by the Due Process Clause."  Why? Because the Court said so!

Although the Court treats this as a fundamental right, there is no analysis as to this newly discovered fundamental right and how it is to be balanced against other rights, including freedom of religion and the legal and policy reasons that the states, or even the federal government, might employ to limit "marriage" to its historical and traditionally understood definition and meaning.

And assuming that there is to be a balance made between the policies advanced by the states or federal government and the personal intimate choices made by those who seek to enjoy the benefits of marriage, notwithstanding the lack of complementariness historically associated with marriage, there was no discussion regarding the level of scrutiny to be given to the balancing by the courts as to those competing rights and to any accommodation the states or federal government might be inclined to make. Indeed, although Romer v. Evans did not involve same-sex marriage per se, the Supreme Court chose not to address the heightened scrutiny for the challenged classification, even though the Colorado Supreme Court used the test of heightened scrutiny in its decision.  So, the question arises, both with respect to long-held views on same-sex relations and acts, how fundamental are these rights to homosexual conduct and to same-sex marriage?

So, where does this lead us?

First, it requires us to look realistically at our culture, and the obstacles people face with respect to the exercise of freedom of thought, freedom of religion and belief, freedom of conscience, freedom of speech, freedom of association, freedom to be fully human with all the dignity that comes with being created in the image of God.  But, secondly, and equally important, it offers us the opportunity to engage that culture, for as Desmond Tutu said, describing the South African word, "Ubantu," we can't be human all by ourselves, and when we have this quality of interconnectedness, we can be known for our generosity.  In the West, we too often think of ourselves as individuals, separated from one another, whereas, when we see ourselves connected. what we do affects the whole world.

What is strange in both the Unites States v. Windsor and Obergefell v. Hodges cases was that in both opinions, Justice Kennedy discussed the multiple millennia history of how "marriage" had been understood and defined without giving much deference to that history.  This brings up the basic philosophical era in which we live.

Most of us have lived with what is generally known as the Post-Enlightenment Modern
Consciousness Challenge.  The challenge was this: The general aspiration emerging from the Enlightenment, and to a large extent still exists today, was to provide for debate in the public realm, or public square as I have identified it above, standards and methods of rational justification by which alternative courses of action could be judged as just or unjust, rationale or irrational, enlightened or unenlightened.  The idea was that reason would displace tradition and authority.  For a belief to be rational, it must meet certain conditions of rationality.  But it defines what those conditions must be, how they are to be based on adequate evidence, and further, what kind of evidence is adequate to support the asserted belief.

There is more however, because there is the assumption that there is a connection between rationality and responsibility.  That is, if a belief is not rational or reasonable according to some prescribed way of determining reasonableness, then one is acting irresponsibly by holding on to such a belief. It becomes immediately obvious that if someone, such as a county clerk in Kentucky (i.e., Kim Davis) holds to a belief in some form of "natural law" and higher law regarding marriage, that person is acting irresponsibly in both holding to that view and in acting in a manner consistent with that view. But, more about this in the next post.  The point is that knowing Truth, or holding to strongly held moral beliefs consistent with that understanding of Truth, involves a duty.

With the emergence of the Post-Enlightenment Modern Consciousness Challenge, which separated any theories of "natural law," morality, Truth based on some objective reality by reason or divine revelation, and tradition from theories of law, came ideas of social justice.  These ideas meant that
justice must prevail in the social sphere, and included ideas such as: one should have the power to determine what on can have or cannot have; one should have the power to take away from a person or group of people to give to others without any obligation to earn it; and the essence was the elimination of poverty, suffering, and the elimination of all differences that erect walls between people.

This led to positivism, both philosophically and legally, and the further separation of morals from an external or universal standard found in religion or idealism.  What was distinctive about positivism was that history was described as going through certain definite stages, which Auguste Comte, a philosopher and the founder of sociology called the religious, the metaphysical, and scientific stages. The earlier two stages were dismissed as primitive and useless, and the scientific stage thought to be the most productive.  Legal positivism opposed natural law theory and denied any connection between law and morality.

During the 19th Century, in reaction to the cold logic of the Enlightenment, there arose the movement known as existentialism.  The term applied loosely to the irreducibility of the subjective, personal dimension of human experience and life, particularly with regard to the aspiration to become an "individual."  What Frederick Nietzsche described with his forceful refutation of any theistic worldview in his parables, The Madman and Thus Spake Zarathustra, was life without God and without morals.

In post-modernity, which is a central fact of human life today in the first, truly global culture, doubt is a pervasive factor, permeating into everyday life.  It institutionalizes the principle of radical doubt and insists that all knowledge takes the form of hypothesis.  Systems of accumulated expertise represent multiple sources of authority, frequently internally inconsistent and divergent in their implications.  Since ideas cannot be rejected, the truth claims of individuals or groups are marginalized and ultimately rejected as narrow-minded, bigoted, extreme, or out of date.  This results in repression of moral questions which our day-to-day life pose, but which are denied answers.

As second trend is "privatization" that is a process that produces a cleavage between private and public spheres of life, and focuses on the private sphere as a special area for expression of individual freedom and fulfillment.  While it includes benefits such as the opportunity for individual freedom, to buy more stuff, to travel more freely, to be free from the constraints of community, tradition, and other people, it is also limiting.  For privatization, in areas of religion and moral belief systems, allows freedom of religion, but only so long as it is confined to the private, personal preference, family, and private association.  This sets up a sort of harmless spiritual reservation established by the architects of secular apartheid.

A third trend of post-modernity is pluralization, or the process whereby the number of options in the private sphere radically multiplies at all levels, especially with regard to worldviews, faiths, and ideologies.  This is beneficial because it brings richness and a variety of experiences to life, and openness to different people, traditions, and life differences, with the opportunity to examine one's own presuppositions and ideas.  However, because of the increase in choices and change, and the modern question marks that always seem present, there is almost an automatic decrease in commitment, continuity, and conviction in relationships, ideas, worldviews, and faiths.

Although Justice Kennedy seemed to touch on all of these in his opinion for the Court, he did not clearly articulate what the adequate evidence was to support the asserted belief that was theoretically based on rationality, however defined.  Indeed, what was missing was any clear expression of his, or of the majority's presuppositions, that drove the decision to abandon the clear definition of "marriage" which has existed for many millennia without challenge,

Rather, upon careful reading of the majority opinions in both Unites States v. Windsor and Obergefell v. Hodges, one can come away with the idea that existentialism and the thinking of post-modernity rules the Court.  The majority dismissed religious moral arguments opposing same-sex marriage as simply animus.  Justice Kennedy gave minimal lip service to religious freedom concerns when he wrote in Obergefell v. Hodges, that "religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that by divine precepts, same-sex marriage should not be condoned."  He continued saying that such individuals may continue to teach those principles that are so fulfilling and central to their lives and faiths, and to "their own deep aspirations to continue the family structure they have long revered."  This is a very privatized form of religion that has no basis in any principle other than the feelings and beliefs of those who are now marginalized and are becoming excluded from participation in the public square.

One well-known sociologist, writing about sociology as a discipline, commented that what many sociologists lack are the foundational philosophical and moral understandings on which to evaluate the data that they collect and regard as truth.  My sense is that many judges are similarly ill equipped.  As I have written before, the issue is not so much that judges, and Justices differ 

Questions of religious freedom, and especially as they have been raised by dissenters in Obergefell. will be addressed in future posts.

So, how does one engage the culture based on what Justice Kennedy wrote as the foundation for his opinion that the Constitution in some way grants a fundamental right to same-sex marriage?  As he noted, numerous same-sex marriage cases have reached the United States Courts of Appeals in recent years.

There are several things we might note here when we look at Court decisions that affect our analysis of what is going on.

First, I take as settled law the principle laid down in Marbury v. Madison (1803).  There, the U.S.
Supreme Court held that the judicial power of the United States is extended to all cases arising out of the Constitution. In so holding, the Court said:
The constitution is is either a superior paramount law, unchangeable by ordinary means, or is is on a level with ordinary legislative acts, and like other acts, may be alterable when the legislature shall be pleased to alter it.
     If the former part of the alternative be true, then a legislative act contrary to the constitution is not law; if the latter part be true, then written constitutions are absurd attempts, on the part of the people to limit a power in its own nature illimitable.
This raises the question now before Court and the United States as to the validity of some of the interpretations of the Constitution, especially when they unsettle established law and definitions long held without question, and when these interpretations, not only stretch the understood text of Constitutional provisions, but also unsettle the entire country.  Is the Supreme Court of the United States the only body, or only government authority, capable and allowed to interpret the Constitution?  How far does the principle of judicial review of Marbury v. Madison extend to hotly contested public policies and to interpretations of Constitutional provisions long understood in a certain way to postmodern anthropological understandings if humans, human nature, and human institutions that have existed over many millennia?  Why are we not having this conversation in our political institutions and in our public square?

This also raises another important point regarding interpretation of the Constitution, and probably also in statutes, and perhaps in the interpretation of culture.  One of the sides of this debate is addressed in the just released book by Supreme Court Justice Breyer, The Court and the World: American Law and the New Global Realities.  This book continues a debate, primarily most recently between Justice Stephen Breyer and Justice Antonin Scalia, regarding interpretation.  Whereas Justice Scalia is the most vocal proponent of the originalist perspective on interpretation, Justice Breyer represents the more pragmatic view of judicial decisionmaking, where the idea is that judges should give weight to the consequences that their decisions produce.

The debate is central to the notion of the country being under the rule of law, as understood since the Magna Carta, or something else, such as under the rule of man responding to changing circumstances.

The thesis of originalism is that the text of the Constitution, and only the text, is the supreme law of
the land, binding on the political branches of the government, both federal and States.  Were this not the case, then the Supreme Court would never be empowered to overrule itself, that is, its past decisions as it has done several hundreds of times.  Moreover, the argument is that the originalist position is central to the concept of the rule of law, constitutionally limited government, and the separation of the three powers of government.

On the other hand, the basic thesis of pragmatic perspective is the call for the "transformative purpose" of the Constitutional text, which "embodies an 'aspiration to social justice, brotherhood, and human dignity that brought this country into being.'"  According to this perspective, the Justices, and indeed we as judges, lawyers, and people, read the Constitution as only 20th Century or now 21st Century readers can.  As the late Justice Brennan once said, "But the ultimate question must be, what do the words of the [Constitutional] text mean for our times."  In other words, the meaning of the text can change with changing circumstances and ages to more adequately reflect the prevailing views of the times.

But, this raises another issue that is hotly debated today among Justices of the Supreme Court. According to Justice Breyer in his new book, the Supreme Court cannot do its job of deciding cases before it without a careful understanding of foreign law and practice.  He argues that the "conservative" alarm about this fails to reflect this new reality.

My sense is that Justice Breyer's point may have a certain ring to it in many cases, such as those addressing capital punishment for juveniles, and in particular, Justice Kennedy's opinion in Romer v. Evans, in which the Supreme Court struck down the 1992 Amendment 2 to the Colorado Constitution, which prohibited all legislative, executive, or judicial acts at any level of state or local government designed to protect the named classes of homosexual people and lesbians and his opinion in Laurence v. Texas, holding that the Texas law against same-sex consensual sodomy was at odds with the Due Process Clause of the Fourteenth Amendment.  In part, the Court's rationale in all of these case drew on foreign law and practice.  In doing so, Justice Kennedy, in Laurence v. Texas, attempted to show that the late Chief Justice Warren Burger was wrong in Bowers v. Hardwick, when he wrote in a concurring opinion that Western Civilization had consistently condemned same-sex intimacy.

Moreover, the Supreme Court, in its ruling striking down bans on same-sex marriages, ignored the European Court of Human Rights's ruling that upheld such bans, such as in Hämäläinen v Finland [2014] ECHR 787.

Members of the Court and members of the U.S. House of Representatives strongly objected to the Court's use of foreign law in both death penalty cases and sodomy cases.  Why have the references to foreign law in these death penalty and sodomy cases produced such strong objection, especially when there is no foreign law question presented?  This is a complicated legal discussion for another day, and probably not here in this blog. But, the question is how the courts, and particularly the U.S. Supreme Court can use foreign law and practices that are currently emerging around the world to understand and interpret the words of the U.S. Constitution, especially those broad and currently ambiguously understood phrases, such as: "Due Process of Law" and "Equal Protection Under the Law."

Second, there is no evidence that any of these cases, or the pressure for same-sex marriage, reached any court before the Supreme Court decided Bowers v. Hardwick (1996) written by Justice Kennedy invalidating the Amendment to the Colorado Constitution regarding same-sex relationships.  Then the Court in Lawrence v. Texas (2003) overruled Bowers v. Hardwick (1986), thereby decriminalizing homosexuality.  This led to the Court's decision in United States v. Windsor (2013) when the Supreme Court upheld same-sex marriage and overturned the Defense of Marriage Act.

What seemed clear from Justice Kennedy's opinion in Obergefell v. Hodges, was that the majority did not think that democracy worked at the ballot box.  Rather, they seemed to think that the movement toward this new and more enlightened approach to marriage, and indeed to sexual relations generally, was too slow.  Therefore, it only seemed proper that the courts had to step into the fray and decide what the people were unable to decide according to the common wisdom of the political, academic, and media class, and that the legislatives actions and ballot initiatives in the vast majority of states were inconsistent with such wisdom.  It was not so much that the states were divided on the issue, as suggested by Justice Kennedy, but that the division was largely between the people and the courts, and particularly the Supreme Court that opened the door to the litigants seeking same-sex relationships, including marriage.

Whether these cases would have ever reached appellate courts is unknown.  But what seems clear is that the Supreme Court in this series of cases legitimized sexual activity that had long been thought to be immoral.  This, I think, gave the necessary momentum to a growing movement that sought legal rights comparable to those enjoyed by traditional marriage partners.  Indeed, they were couched in terms of civil rights not unlike those advanced in race relations cases.  What the Court gave the country, and the world, was a sociological tract promoting a movement based on some kind of data to which we have not been informed.

Third, it seems strange that a movement which started in the U.S. Supreme Court in United States v. Windsor and the line of privacy/same-sex relations cases preceding it that the Supreme Court must now rely on the decisions of the lower appellate courts that extended some of the rationale of the Supreme Court's earlier decisions, such as, Lawrence v. Texas, Romer v. Evans, and United States v. Windsor.  And this, notwithstanding the fact that the vast majority of states opposed same-sex marriage and the departure form the historically recognized and traditional definition of marriage.

We hear the constant declaration from so many circles that we, as a people, and particularly government officials at all levels, need to respect Obergefell v. Hodges, as the law of the land.  Yet we wonder what the law of the land was before United v. Windsor and Obergefell v. Hodges.  Without hearings as to the impact of the Court's decision in United States v. Windsor when the Court overturned major portions of the Defense of Marriage Act, and without serious consideration of legislative acts, enacted by state legislatures in accordance with democratic principles and ballot initiatives, what was the law of the land then?  How many federal and state statutes conferring rights and obligations were overturned by the Court in Unites States v. Windsor? 

Indeed, considering only the law defining marriage, notwithstanding the new understanding by the Supreme Court of the Fourteenth Amendment to the Constitution, where marriage, although not mentioned in the U. S. Constitution, is now defined inconsistently with its history.  How did this new understanding become the law of the land?  What was the law of the land regarding marriage, that is, prior to 2013?  What are we to make of Reynolds v. United States, when the U.S. Supreme Court, in 1878, in its first extended discussion on First Amendment and the so-called separation of church and state, announced that polygamy was inconsistent with traditional understanding of marriage and that religious belief was no defense to a charge of bigamy.  The issue was the conflict between the U.S. law criminalizing bigamy and polygamy authorized in the Territory of Utah and recognized by the Church of the Latter Day Saints (Mormon Church) which stated that it was the duty of male members of the church to practice polygamy.  Of course, the issue was polygamy rather than same-sex marriage, but the rationale rested on the nature of marriage as it was understood at the time.

The Court's majority, speaking through Justice Kennedy, cited and quoted Alexis de Tocqueville (;  In this regard, it might be good to remember what Tocqueville wrote 180 years ago, that seem quite apropos to what we see the Court doing.
     The influence of legal habits extends beyond the precise limits I have pointed out. Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question.  Hence, all parties are obliged to borrow, in their daily controversies, the ideas, and even the language, peculiar to judicial proceedings.  As most public men are or have been legal practitioners, they introduce the customs and technicalities of their profession into the management of public affairs.  The jury extends this habit to all classes.  The language of the law thus becomes, in some measure, a vulgar tongue; the spirit of the law, which is produced in the schools and courts of justice, gradually penetrates beyond their walls into the bosom of society, where it descends to the lowest classes, so that at least the whole people contract the habits and tastes of the judicial magistrate.

Fourth, much of human wisdom is tacit knowledge.  That is, it is part intuitive and comes to us from different sources.   Michael Polanyi first introduced the term into philosophy, arguing that "we can know more than we can tell."  Without some form of shared experience, it is extremely difficult to share each other's thinking processes.  Michael Polanyi presented the idea of two types of knowledge: One which was explicit and expressed in words, numbers, diagrams, symbols, and propositions that could be communicated.  The other, which was possessed by individuals without their awareness that it existed.

Tacit knowledge was highly personal and hard to formalize.  As a result, it was hard to communicate and share with others.  There were two dimensions to tacit knowledge.  The one focused on awareness, and the other on subsidiary awareness.  Thus, for example, in one's use of a hammer or the playing of the piano, the focus was not on the subsidiary knowledge or skill, such as holding the hammer in a certain away, or how the the fingers were placed on the keys of the piano or the feet on the pedals.

Thus, have you ever known something without knowing how, or maybe why?  Have you ever instinctively felt one way despite intellectual evidence to the contrary?  That instinctual feeling is tacit knowledge which is all of our unconscious understanding and which governs all of our habitual daily interactions, such as acknowledging people as we pass them, or seating in the same seat or desk although it was not assigned to us.
While this type of tacit influence on our actions may be innocuous, and indeed necessary for continuing in day to day social interaction harmoniously, tacit knowledge may have a greater influence on our actions, emotions, and decisions than we are aware.  In each generation, a small group of people try to revise stories, societal beliefs, theories, commonly accepted practices and are inevitably met with fear and anger of many who want things to stay the same.
For example, one writer describing the situation in his own family wrote:
     Although many people can intellectually and consciously accept something, they cannot always reconcile it to their instinctive feeling.  My parents are good friends with a homosexual couple, and have helped out with many fundraisers for the gay community. Consciously and intellectually, they believe in gay rights, and they will attend their friends' wedding this winter.  Yet tacitly, they still sometimes feel uncomfortable.  "I know it's irrational," my dad admits.  "Intellectually, I support them and believe that they have the right to get married, but sometimes it still makes me uncomfortable."  He isn't, I am sure, the only one who has trouble reconciling conscious knowledge to his tacit understanding.
The very idea of marriage involves both explicit knowledge and tacit knowledge.  My sense is that part of the problem is that the conflict between explicit knowledge and tacit knowledge is due to the overload of information that is taught in the schools, taught in media and movies, and taught in the political arena, especially in the courts, which knowledge conflicts with the accepted wisdom of ages past expressed propositionally and in the experience of the human race, and from which much of our tacit knowledge might be derived.  In times past, the Church's beliefs and teachings, including those that said that the earth was the center of the universe and that marriage was between one man and one woman forever, were ingrained in society.  Modern society is structured differently.  While some still recognize and follow that tacit knowledge, not really examining where it was derived, they feel the conflict with what society and the courts seem to say is good and right and true.

Until just a decade or less ago, and certainly within our generation, marriage was thought of as a permanent, exclusive union of a husband and wife.  It is when it is attacked, that the need for a formal, explicit defense arises.  As one writer put it, this is like "explaining why wheels are round, but it has to be done."  This means going back to first principles.  Of course, marriage has been under attack for many decades as evidenced by the rate or divorce, out-of-wed births, the frequency of cohabitation and now "hook-ups," and the general trends resulting from the sexual revolution.

An ancient Greek philosopher, Aristotle, suggested that we can understand any community by analyzing three factors, namely, the actions that the community engages in, the goods the community seeks, and the norms of commitment that shape the community's common life.  For example, in the academic community, or in academia, members of the community engage in academic activities, such as research, writing, teaching, mentoring students, grading papers, etc.  Members of the academic community are oriented toward the goods or knowledge and truth.  All activities and efforts, such as research, writing, teaching, mentoring, grading student papers are directed toward eliminating ignorance from our lives, seeking a better appreciation of truth and of the world around us.  And the norms that are pursued are commitment to academic integrity, academic freedom, commitment to academic honor codes, and assisting others in the pursuit of knowledge and truth. As will be discussed more , we can understand the marital relationship in the same way.

The question arrises as to what makes marriage different from other forms of community, such as sports teams, book clubs, community organized civic projects, religious communities?

Fifth, the debate that has existed in the United States, and indeed elsewhere, is not about marriage equality.  Everyone favors marriage equality, and the Supreme Court decision in Loving v. Virginia in 1967 invalidating bans against interracial unions is a clear example of that.  Rather, the debate is about the very definition and nature of marriage, a debate which has been going on for more than 150 years as certain forces have sought to abolish marriage and the family.  Only if one knows what marriage is, are the arbitrary distinctions from laws that treat them differently for no good reason subject to challenge. So, one must answer the question, what is marriage, before engaging in a discussion about marriage equality. This would require exploring what good reasons there are for marriage and for any policy designed to abolish or change it significantly from what it has been understood through the millennia can there be a debate or decision about marriage equality and whether a given policy violates the principle of marriage equality.  "Every law makes distinctions.  Equality before the law protects citizens from

Justice Alito in his dissent in United States v. Windsor described "marriage" as a "comprehensive, exclusive, permanent union that is intrinsically ordered to producing new life."  The question might be raised by what he meant by "comprehensive."  But, maybe we really know what it means since there is the element of complementarity necessary for "producing new life."  Isn't that what Justice Kennedy was talking about when he wrote for the majority about the understanding of what marriage was through the millennia, or did he have something else in mind?  If not, he was not clear about what he meant.  On the other side of the argument, he cited a proponent of the consent based idea that marriage is marked by primarily by an intense emotional union -- a romantic, caregiving union of consenting adults.  If that is all Justice Kennedy required, then there is no permanency attached to whatever union we seek to call marriage.

Sixth, the thread that runs through the Court's decision in Obergefell v. Hodges is that the central to marriage are individual autonomy, the committed, two-person union unlike other relationships, the right to establish a home for the care and education of children which are in someway central to the liberty protected by the Due Process Clause, and the fact that somehow marriage is a keystone to social order.  But these might not make much sense as I will discuss in the next post.  What seems missing in all of this discussion by the Court is what Justice Alito points out in his dissenting opinion;
     For today's majority, it does not matter that the right to same-sex marriage lacks deep roots or even that it is contrary to long-established tradition.  The Justices in the majority claim the authority to confer constitutional protection upon the right simply because they believe it is fundamental.
According to Justice Alito in his dissent, the majority argues that the State has no valid reason for denying that right to same-sex couples.  This reasoning, according to Justice Alito, with which I agree, is dependent upon a peculiar understanding of the purpose for civil marriage.  The argument is simply that the purpose of marriage is to promote the well-being of those who choose to marry.  It may provide fulfillment in the time of emotional need and support in times of need.  Perhaps, but the argument does not show how the needs of society are met, and how the common good which is central to a functioning society is fulfilled, except may that those who live in stable, fulfilling, and supportive relationships might be better citizens.

If. as the States argue here in defending their laws regarding traditional understanding of marriage seem a little pragmatic, it is because they are and use the language of that characterizes most American political discourse.  Nevertheless, the basic argument is that "States formalize and promote marriage, unlike any other fulfilling human relationships, in order to encourage potentially procreative conduct to take place within a lasting unit that has long been thought to provide the best atmosphere for raising children."  Moreover, as Justice Alito wrote, "If this traditional understanding of the purpose of marriage does not ring true to all ears today, it is probably because the tie between marriage and procreation has frayed."

Implicit in Judge Alito's dissent is the warning which he articulated in his dissenting opinion in United States v. Windsor where he wrote:

     The family is an ancient and universal human institution.  Family structure reflects the characteristics of a civilization, and changes in family structure and in the popular understanding of marriage and the family can have profound effects. Past changes in the understanding of marriage -- for example, the gradual ascendance of the idea of romantic love as a prerequisite to marriage -- have had far-reaching consequences.  But the process by which such consequences come about is complex, involving the interaction of numerous factors, and trends to occur over an extended period of time.
     We can expect something similar to take place if same-sex marriage becomes widely accepted.  The long-term consequences of this change are not now known and are unlikely to be ascertained for some time to come.  There are those who think that to allow same-sex marriage will seriously undermine the institution of marriage. Others think that recognition of same-sex marriage will fortify a now-shaky institution.
      At present, no one -- including social scientists, philosophers, and historians -- can predict with any certainty what long-term ramifications of widespread acceptance of same-sex marriage will be.  And judges are certainly not equipped to make such an assessment.  The Members of this Court have the authority and the responsibility to interpret and apply the Constitution.  Thus, if the Constitution contained a provision guaranteeing the right to marry a person of same sex, it would be our duty to enforce that right.  But the Constitution simply does not speak to the issue of same-sex marriage.  In our system of government, ultimate sovereignty vests in the people, and the people have the right to control their own destiny.  Any change on a question so fundamental show be made by the people through their elected officials.
I accept the idea that the Supreme Court, or any court for that matter, in interpreting the Constitution, may often do so protecting the rights of those in a minority.  After all, the Constitution is not interpreted on the basis of some majority opinion, authority, or rule.  However, when the people have spoke so clearly through their State legislatures and representatives in the U.S. Congress, as they did in the Defense of Marriage Act which was overwhelming approved by an almost unanimous majority and signed into law by the President, the courts, including the U.S. Supreme Court owe some deference to the voice of the people, especially when it is clear that the Constitution is silent on such and important point.

Nevertheless, the Supreme Court seems to flounder its way through articulating how the particular premises upon which it based its decision to overrule many millennia of understanding and law regarding marriage are unique to its definition of marriage, as opposed to any other social arrangement. On its face. these decisions in United States v. Windsor and Obergefell v. Hodges appear to be contrary to the historical understanding held through the millennia, which the majority, in an act of judicial tyranny, tosses aside when it describes the features of marriage as based on four premises, including consent and caregiving.  Otherwise, the premises, such as they were stated by the Court as rationale for changing history and stability in society in the furtherance of the common good simply do not make sense.

So with these points in mind and without clear legal reasoning, we take the U.S. Supreme Court at its word when it describe the four premises on which it relied in Obergefell v. Hodges, and examine the validity of each of those premises in the next post and their implications for civil society.

Thursday, September 3, 2015

It Does Make a Difference! Words, Facts, History, Truth, Law, and Morals Do Matter!

Wesley Pruden, a newspaper columnist, just wrote about what we are doing to our language, at least to the English language in New pronouns for the traveling freak show.  Writing about what has been going on for some time now, but especially now since Olympic Decathlon Champion Bruce Jenner has come out in a remarkable transformation reflected in a cover story in a Vanity Fair magazine, Pruden wrote: 
     Caitlyn Jenner, taking pride in his or her decolletage with a smart new frock for his famous Vanity Fair photo shoot, started the madness of the summer of '15, but he's got nothing on the educational establishment. . . .
     The University of Tennessee, once known mostly for its football as she was meant to be played, has joined seats of advanced learning in Michigan, Maryland, North Carolina and Vermont in performing imaginative radical surgery on the language.  We can be sure that California will not be far behind.
     Though new pronouns are not official university policy, not yet, the university's Office for Diversity and Inclusion is officially encouraging students, professors, athletes, cooks, parking-lot attendants, groundskeepers, latrine orderlies and many others -- everyone who bleeds orange and white -- to think not only beyond male and female, but beyond pronouns used for centuries to describe such creatures.  The new, gender-neutral pronouns are "xe," "xym," and "xyr."  And you thought "Ms." (pronounced "Mzz") invented to describe women who had not yet caught a man, was gross enough.
Anyone who has read the writing of Wesley Pruden knows him as a satirical opinion columnist.  But, quoting the Director of the University's Pride Center, he writes: "[W]e should not assume someone's gender by their [sic] appearance, nor what is listed on a roster or in student information systems. ... Transgender people and people who do not identify within the gender binary may use a different name that their legal name and pronouns of gender identity, rather than the pronouns of sex they were assigned at birth."

In the words of Charlie Brown from the Peanuts comic strip: "Good grief!"  One Tennessee state senator remarked that "the biggest lack of diversity we have at the University of Tennessee is people of common sense."  But, as Pruden advises, we must march into the indefinite future in a world safe for those who can self-identify their genders according to Facebook's 58 gender identities, protected from English teachers lurking in the shadows waving a copy of Strunk and White, The Elements of Style.

If this is the case, and words have ceased to have their meaning, where facts no longer matter, where history and truth no longer are accepted as guides for thought and dialogue, and where we are followed and bullied by the guardians of our current culture, where are the voices to be heard in this now contested public square?

What the increasing litigation and political posturing reflect is just how congested the public square is.  And, yet there are voices that seek to block out those voices from segments of society with which they do not agree.  And indeed, which attempt to marginalize those with whom they do not agree, rather than simply debating or even rejecting those ideas with which they disagree.  Hence, rights such as freedom of assembly, freedom of speech, freedom of the press, and freedom of religion all seem to be challenged.

As Os Guinness wrote in The Global Public Square,
How do we live with our deepest differences, especially when those differences are religious and ideological, and very especially when those differences concern matters of our common public life?  In short, how do we create a global public square and make the world safer for diversity?
This, then, is what I wish to address in this post, a follow-up to my last two posts, and two posts yet to be published concerning the final weeks of the recent term of the U.S. Supreme Court. 

Os Guinness noted in this book that there are three trends that affect all of us who are concerned about this issue and which we must recognize and confront.

The first is that when freedom of thought, conscience, religion and belief. which is clearly established by evidence, is recognized and respected for people of all faiths and none, important social goals, such as peace, stability, social cohesion, generosity, enterprises are unleashed as positive forces on civil society.

The second is that restrictions on fundamental and foundational human rights are mounting across the globe in most nations in the world, including those with histories that are democratic and built on dignity and worth of every human being, which were once champions of these freedoms.  Although the majority of people in the world believe in someone or something higher than human, as Os Guinness points out and research establishes, "the overwhelming majority of them do not have the freedom to practice their faith freely."  Even in the United States, according to a Pew Forum on Religion and Public Life in 2012, there has been a rise in both government restrictions and social hostility toward religion, moving the United States in 2010 into the top sixteen countries in the world where there are such restrictions and hostility.  If there is any doubt about this, one need only look at the litigation over the past few years concerning the contraceptive mandate provided by the Affordable Care Act, the Supreme Court decisions on same-sex relations and marriage. and the hostility generated over social media to bakers, florists, and companies that decline to participate in same-sex "weddings" because such participation violates their sincerely held religious beliefs.

The third is that the greatest threat to religious freedom is no longer simply the result of age-old authoritarian oppression and sectarian violence.  Rather, it is the convergence of trends that Guinness characterizes as a perfect storm: the general disdain for religion that leads to discounting religious freedom, with a sharpened aggressive atheism and exclusion of religious thought and discussion from public life; the aggressive advancement of the sexual revolution which treats all religious thought as oppressive and as an obstruction to sexual freedom and to dismantle religious freedom forever, and current forms of "hate speech."

I have said on several occasions and previously written herein that there are three common threats or challenges to civil society.  These are: (1) internal threats or challenges, such as issues of integrity, transparency, and accountability within the civil society organization, itself, that adversely affect the reputation or trust of the organization and/or the sector; (2) external threats, such as political threats to the right to exist or to its right function in society for the common good through its common operations, but may also result from the external public pressure through social media and protest driven by a particular agenda; and (3) those general threats that face humankind as a whole, such as violent conflicts, poverty, natural disasters, and profound inequality, although some these are the result of human causes.

However, my focus here is on those external threats and challenges which we face in society generally, and which affect organizations in the economic marketplace and in civil society, with some subordinate glances at the first or internal threats, that may result from some responses to the external forces.

In my last two posts I wrote about the final weeks of the 2014/2015 term of the U.S. Supreme Court. My interest was primarily on those decisions in which words were twisted beyond their normal, plain meanings, or where biological reality, facts, history, truth, law, and morals were of no consequences. Shortly before these decisions, 64 year-old former Olympic decathlon champion, Bruce Jenner decided that he was not satisfied with his biological and genetic status, and decided he could do something about it, coming out in a splashy cover-page story in Vanity Fair as Caitlyn Jenner.

Perhaps you remember when "gender" was defined in the dictionary as a grammatical term, primarily denoting the the formal classification by which nouns were grouped and inflected, or changed in form to reflect certain syntactic relationships to pronouns or modifiers, and in which verbs may also be inflected. The term "gender gap" referred to the apparent disparity between men and women in values, attitudes, wages, and voting patterns.

But, something happened with the language and the use of words.  Colleges and universities started to use the term, "gender" instead of "sex" to distinguish between men and women students.  I remember an article in the Chronicle of Higher Education some 15 years ago that stated, somehow we discovered that there were then five genders, largely based on the new ideas of "gender identity." As I noted above, we now learn from Facebook, that there are 58 genders by which subscribers can self-identify.  Do words mean anything anymore, and does language provide a means of clear communication between people?

Reflecting on this and what it says about society today, I thought of the  recent book by well-known sociologist Christian Smith, where he wrote about sociology, or as he referred to it, The Sacred Project of American Sociology.  The idea behind this use of the word, "sacred" came from that famous sociologist, Emile Durkheim, and referred to something that was not ordinary, mundane, or instrumental, rather was set aside, venerated, defended, revered, honored as beyond questioning or disrespect.  In defining the sacred project of American sociology, Smith wrote:
We might start by saying that sociology is about something, like exposing, protesting, and ending through social movements, state regulations, and government programs all human inequality, oppressions, exploitation, suffering, injustice, poverty, discrimination, exclusions, hierarchy, constraint and domination by, of, and over other human beings (and perhaps animals and the environment). . . .  If we want to really understand sociology well, we need to dig harder.  Sociology's deeper sacred project is more fully and accurately described as follows:  American sociology as a collective enterprise is at heart committed to the visionary project of realizing the emancipations, equality, and moral affirmation of all human beings as autonomous, self-directing, individual agents (who should be) out to live their lives as they personally so desire, by constructing their own favored identities, entering and exiting relationships as they choose, and equally enjoying the gratifications of experiential, material, and bodily pleasures.  That is the deeper vision that undergirds and justifies the first description about ending oppressions, etcetera.  It provides the more positive, constructive account of why all of those bad things need to be exposed, protested, and ended. [Emphasis in the original]
It seems to me that this is what is going on in society, at least Western society.  It seems particularly reflected in much of the protest movement, and especially in the decisions of courts at all levels, including the U.S. Supreme Court.

As Smith wrote in his Introduction, "a great deal of sociology is devoted to showing that the ordinary world of everyday life as it seems to most people is not really what is going on -- in short to debunk appearances" as stated by Peter Berger in his 1963 book, Invitation to Sociology.  "Thus, for example, ordinary people's naive experiences of religious faith and sacred practice ought not to be taken seriously on their own terms, but are better understood through sociological interpretations of their scientific meaning and causes in terms of concepts like resource exchanges, status struggles, coping mechanisms, gender inequities, class interests, social control, etc."  [Emphasis in original]  As stated above with regard to certain trends we see, there seems to be a growing general disdain for religion that leads to discounting religious freedom.

Since there is profound skepticisms in all the institutions in society, including government, it is strange that only government has any chance of getting it right, of effecting the change sought by these forces of the Enlightenment and post-modernity.  And since democracy, whether direct democracy by the people or representative democracy, is too messy and slow, the responsibility for effecting the desired change is too often left to the courts, or public opinion advance through the means of social media.

So, nothing seems simple and straightforward anymore.  There are no shared values, no shared authority, and no shared language.  Everything is a matter of perspective.  The public square may be contested, but those voices within the public square are limited.

Engraved on the walls of the Jefferson Memorial in Washington, D.C. are the following inscriptions:

I have sworn up the alter of God eternal hostility against every form of tyranny over the mind of man.
[Excerpted from a letter to Dr. Benjamin Rush, September 23, 1800]

Almighty God hath created the mind free.  All attempts to influence it by temporal punishments or burthens . . . are a departure from the plan of the holy Author of our religion. ... No man shall be compelled to frequent or support religious worship or ministry or shall otherwise suffer on account of his religious opinions or beliefs, but all men shall be free to profess and by argument to maintain, their opinions in matters of religion.  I know of but one code of morality for men whether acting singly or collectively.
[Excerpted from a Bill for the Establishing Religious Freedom, drafted in 1777.  First introduced in the Virginia General Assembly in 1779, after he became Governor.  The last sentence is excerpted from a letter to James Madison, August 28,1789, as Thomas Jefferson was returning to America to assume his position as Secretary of State.  Ellipsis in the inscription on the wall of the Jefferson Memorial]

God who gave us life gave us liberty.  Can the liberties of a nation be secure when we have removed a conviction that these liberties are the gift of God?  Indeed I tremble for my country when I reflect that God is just, that his justice cannot sleep forever.  ...
[Excerpted from multiple sources: "A Summary View of the Rights of British America,"  "Notes on the State of Virginia," "The Autobiography," "Letter to George Wythe (1790), letter to George Washington (1786)]

Do these statements of principles represent some level of reality, or are they merely aspirational?

While these are the expressions of one man and represent at least a part of the history of the United States of America, the principles are sound and should have some meaning to others who don't share this particular history.  We watch the discourse in public square, and we read decisions of the U.S. Supreme Court, such as those just discussed in my most recent posts, and we wonder whether we as a people have any sense of our historical heritage and in what world we inhabit.  Or maybe these statements do not truly represent our past historical thinking.  Maybe that is what we are led to believe today; they they are merely relics of a day long ago.

But, they also raise an interesting question in my mind.  Are these statements, those rights protected in the First Amendment to the U.S. Constitution, and those identified in the Declaration of Independence pre-political?  Do they include freedom of religion, both to believe and to exercise that belief, freedom of speech and of the press, freedom to assemble, freedom to petition the government for redress of grievances,  the rights that flow from the fact that all are created equal and are endowed by their Creator, not by the government, with certain inalienable rights, including the right to life, to liberty, and to the pursuit of happiness, consistent with the language of the U.S. Constitution and Declaration of Independence, or are these merely aspirational desires?  The recent U.S. Supreme Court decision in Obergefell v. Hodges, and its earlier decisions, for example, in United States v. Windsor raise the question whether marriage, as always understood to be pre-political, is not that at all.  In other words, do those rights all exist apart from, and before government, or are they granted and revoked at will by government?

At some point, we have to understand to what end this all matters.  If they are merely abstract concepts articulated without shape or form in some ancient document that does not have particular relevance to America today, or indeed to any society, then they can be ignored with impunity. After all, what are the rights to life, liberty, and pursuit of happiness, in a culture in which life is not respected, where liberties are increasingly limited based on government determinations (perhaps on what is thought to be the common good), and where the pursuit of happiness is merely the immediate gratification of one's own needs or desires, without regard to how they might affect the very structures of society?  Are there broader applications beyond the United States of America as suggested by Thomas Jefferson in his Summary of Rights quoted above, or are these rights, including freedom of religion and belief, freedom of speech and of the press, freedom to assemble, and freedom to petition the government political rather than pre-political and limited to the United States?

This seems to fit with what the authors collectively known as the "Bellah group" reported from their research in the 1985 national bestseller, Habits of the Heart: Individualism and Commitment in American Life.  The authors raise several questions: How ought we to live?  How do we think about how we live?  Who are we and what is our character?  But the fundamental question posed in the book is how do we preserve or create a morally coherent life.

Yet, as the Bellah authors noted, for most of us, "it is easier to think about how to get what we want than to know what exactly we should want."  

In the "Bellah group" research, it appeared that the "touchstones of truth and goodness lie in individual experience and intimate relationships."  Here, what they are addressing is not the individual experiences and intimate relationships in the sense described by the U.S. Supreme Court in Obergefell v. Hodges, but rather the widespread and strong identification with the United States as a national community, which at the same time allows people to develop loyalties with others in the context of families, small communities, religious congregations, and what they have termed as lifestyle enclaves.

Moreover, as the "Bellah group" found, the problem of articulating a public good is bound up in confusion about citizen and religious life, where religious life seems strikingly similar to political life. Further, the American search for spontaneous community with like-minded people is made urgent by the fear that there may be no way to relate to those who are too different.

As Gary Wills reminds us, the notion of public virtue to earlier generations was not an abstraction, but a visible quality exemplified by people of virtue.  Accordingly, the notion of virtue described an ideal of character made concrete not simply by the works of ancient writers, but also by the stories of those who lived lives of virtue in the early days of America.  This was true, in part. because the life of relatively small-scaled communities was shaped by a religious and civic morality that generally worked to channel and transform public ambition into the public concerns of individual citizens.

If all of this is true, then it invokes the age-old idea of the common good.   The historic, and perhaps most frequently articulated definition in Catholic social teaching about the common good is that it is "the whole network of social conditions which enable human individuals and groups to flourish and live a fully, genuinely human life, otherwise described as 'integral human development' where all are responsible for all, collectively, at the level of society or nation, not only as individuals."  Indeed, as stated in the Catholic Church's social teaching on the common good:
     Public authorities have the common good as their primary responsibility.  The common good stands in opposition to the good of rulers or of the ruling (or any other) class.  It implies that every individual no matter how high [including members of the Supreme Court and Executive Branch] or low, has a duty to share in promoting the welfare of the community as well as a right to benefit from the welfare.  "Common" implies "all-inclusive", the common good cannot exclude or exempt any segment of the population.  If any section of the population is in fact excluded from participation in the life of the community, even at a minimal level, then that is a contradiction to the concept of common good and calls for rectification.
However, it is important to read this statement from the Catholic Church in the context of the broader outlines of these themes in the document itself.  For example, although the principles and theories of natural law, have been largely discounted in legal circles discourse, they can be understood, as Professor John Finnis repeatedly points out, particularly in his Natural Law and Natural Rights, as principles of reason for judging or acting in the absence of understood reasons, or for discarding some reasons which are understood and may be relevant, providing certain boundaries for dialogue regarding things that may be contested in the public square.  Much of the discussion today concerning the role of law, politics, and ultimately government is not contained within any reasonable boundaries for discussion of the important issues of the day, including the contested social issues and the role of the U.S. Supreme Court for establishing major social policy on such contested issues.  What the Supreme Court did in Obergefell v. Hodges, had little to do with the Constitution and with law.

As often is the case in these discussions, we go back to the French social philosopher, Alexis de Tocqueville and his most comprehensive and penetrating analysis of the relationship between character and society in America in his 1830s book, Democracy in America, which on occasion he called "habits of the heart."  What is interesting is the way he singled out family life, the American religious institutions, and our participation in local groups and political life as helping to create the kind of person who could sustain a connection to the wider political community and thus support the maintenance of free institutions.

But Tocqueville also warned that some aspects of our character, what he once called individualism, might eventually isolate Americans from one another and thereby undermine the conditions of freedom. Moreover, in a world of potentially conflicting self-interests, no one can really say what value system is better than another.  Benjamin Franklin was more interested in the individual, and although he agreed generally with Thomas Jefferson regarding the protection of rights and security of equal treatment under the law, his focus was almost entirely on individual self-improvement that the larger social context hardly came into view.

The Bellah group touched on a number of issues, including success, freedom, and justice that offer different voices in a common tradition.  What struck me was the description of freedom, which as the authors described, gave Americans a respect for individuals, while stimulating initiative, creativity, and sometimes tolerance of differences in a diverse society and resistant to overt forms of political oppression.  At the same time, this idea of freedom leaves many with a fear of acknowledging structures of power interdependence in a technologically complex society dominated by giant corporations and an increasingly powerful state.  And, this was written in the mid-1980s before the explosion of the Internet and social media, and the increasingly disappearance of brick and mortar shops and factories where people gathered to shop, work, and be in community.

For Jefferson, the drafter of the Declaration of Independence, equality was political equality, not equality in all respects.  He held equality as a fundamental and universal principle, true at all times and all places.  As a result, he listed the essential principle of government as "equal and exact justice to all men, of whatsoever state or persuasion, religious or political."  With respect to freedom of religion, i.e., where Congress is prohibited from making any law respecting the establishment of religion or preventing the free exercise thereof, Jefferson's first freedom was aimed at insuring that government authorities did not have the legal power to force their views on others.  Jefferson, in general, favored freedom of the person from arbitrary state action, and freedom of the press from censorship.

I am not persuaded that the so-called Civil War Amendments, and particularly the Fourteenth Amendment changes that basic understanding.  Justice Kennedy writing for the majority in Obergefell v. Hodges, did mention the "due process clause" and the "equal protection clause" of the Fourteenth Amendment,  Indeed, the "due process clause" in the Fourteenth Amendment basically quotes verbatim the language of the Fifth Amendment.  As I wrote in my last posts, what was absent in this decision was any legal rationale founded in the U.S. Constitution.  But, this is not intended to be a legal brief on the subject.  In other words, it is not my intent to discuss how this decision and similar decisions, including King v. Burwell, reflect on the doctrines of separation of power, both horizontally between the three branches of government and vertically between the federal central government and the states, or the effect on democracy.  Rather, my purpose here is to address the effect on culture or society and on civil society in particular.

However before doing that, just to see how far we have gone in the 180 years or so since Tocqueville published his Democracy in America, the Bellah group pointed out in their Habits of the Heart:
     Tocqueville argues that while the physical circumstances of the United States have contributed to the maintenance of a democratic republic, laws have contributed more than those circumstances and mores have more than the laws.  Indeed, he stresses throughout the book that their mores have been have been the key to Americans' success in establishing and maintaining a free republic and that undermining American mores is the most certain road to undermining the institutions of the United States.  He speaks of mores somewhat loosely, defining them variously as "habits of the heart"; notions, opinions, and ideas that "shape mental habits"; and the "sum of intellectual dispositions of men in society.  Mores seemed to involve not only the ideas and opinions but habitual practices with respect to such things as religion, political participation, and economic life.
      In short, Tocqueville, unlike [the French settler, Hector St. John de Crevecoeur] saw the great importance of the American mores of his day of continuing biblical and republican traditions -- the traditions of [John] Winthrop and Jefferson.
The use of the term, "civil society" is quite intentional, especially in the context of these past two posts where I posed the question: "What Difference Does it Make?"  There is a great deal of misunderstanding, some simply as a result of political concerns, about what we mean by the term, "civil society."  Part of the fear in some countries comes from the way the term, "civil society" was reintroduced to our lexicon during the independence movement throughout Eastern Europe.  This simply ignores the ancient and long history of both the term and concept of civil society.

But, it is important to suggest some of the confusion or reasons for this rejection of the historical idea of civil society which goes back to Plato, Aristotle.  Although Plato refers generally to the concept in his Republic, Vol. , the concept and term were more clearly articulated by Aristotle in his Politics where he refers to community characterized by a shared set of norms and ethos, in which free citizens on an equal footing lived under the rule of law.   The telos, or end of civil society was thus defined as the common wellbeing of society.  In its general sense, "civil society" describes elements such as freedom of religion, of association, of speech, of an independent judiciary, etc., that make up a democratic society.

There are a number of definitions with historical roots that are helpful.  The one I find especially helpful is the definition provided by the London School of Economics, Centre for Civil Society. although in my view it is far to narrow.  According to this definition,
     Civil Society refers to the arena of uncoerced collective action around shared interests, purposes, and values.  Its institutional forms are distinct from those of the state, family, and market. though in practice, the boundaries between state, civil society, family, and markets are often complex, blurred, and negotiated.
Yet, as I read Tocqueville and the Bellah group's Habits of the Heart, I get the idea that civil society could well include all those intermediate associations we have in life, whether family and extended families, small community associations of people with similar interests, or the array of larger organizations that make up the nonprofit sector.

This also fits in with much of the social teaching of the Catholic Church of subsidiarity.  The principle was articulated in the encyclical Quadragesimo Anno (1931) as follows:
     Just as it is gravely wrong to take from individuals what they can accomplish by their own initiative and industry and give it to the community, so also its is an injustice and at the same time, a grave evil and disturbance of right order to assign a greater and higher association what lesser and subordinate organizations can do.  For every social activity ought by its very nature to furnish help to the members of the body social and never destroy or absorb them.
     The supreme authority of the State ought, therefore, to let subordinated groups handle matters and concerns of lesser importance, which would otherwise dissipate its efforts. Thereby the State will more freely, powerfully and effectively do all those things that belong to it alone because it alone can do them: directing, watching, urging, restraining, as occasion requires and necessity demands.   
For those who follow and are involved in the civil society sector, there is really nothing new here in this definition, although its application may be unevenly applied across different cultures and histories. Alexis de Tocqueville, in his observations of America in his report, Democracy in America, wrote about the place of civil society and how it gave strength to the democratic impulses in America, particularly as in respect to intermediary associations.  He described his native France as a growing and centralized state, and its increasingly coddled and individualistic, undisciplined populous with more emphasis on pleasure and equality than virtue.  Describing the power exercised by the state in these circumstances, he writes:
     After having taken each individual in this fashion by turns, into its powerful hands, and having kneaded him in accord with his desires, the sovereign extends its arms around society as a whole.  It covers its surface with a network of petty regulations -- complicated, minute, and uniform -- through which not even the most original minds and the most vigorous souls know how to make their way past the crowd and emerge into the light of day.  It does not break wills; it softens them, bends them and directs them. Rarely does it force one to act, but it constantly opposes itself to one's acting on one's own.  It does not destroy, it prevents things from being born, it extinguishes, it stupefies, and finally, it will reduce each nation to nothing more than a heard of timid, industrious animals of which the government is the shepherd.

We are reminded of Aleksandr Solzhenitsyn's widely reported commencement address at Harvard University in 1978, when he said:

     Every conflict is resolved according to the letter of the law and this is considered to be the ultimate solution.  If one is right from a legal point of view, nothing more is required, nobody may mention that one could still not be entirely right, and urge self-restrain of a renunciation of those rights, call for sacrifice and selfless risk; this would simply be absurd.  Voluntary self-restraint is almost unheard of; everybody strives toward further expansion of the extreme limit of legal limits. . . .
     I have spent all my life under a Communist regime and I will tell you that a society without any objective legal scale is a terrible one indeed.  But a society with no other scale is also less than worth of man. . . . Whenever, the tissues of life is woven of legalistic relationships, this creates an atmosphere of spiritual mediocrity that paralyzes man's noblest impulses.
Is that true?   Have we become such a people of laws that all of this litigation about health care mandates and about the legitimacy of transgender and same-sex marriage is nothing more than an attempt to provide the ultimate solution to every conflict with respect to language, morality, and claims of human or civil rights?  Is there an objective basis for the legal scale, and if not, what other scales are there?

Is possible to agree today that the terms or clauses, "due process of law" and "equal protection of the laws" in the Fifth and Fourteenth Amendments to the Constitution are, in today's society, broad, ambiguous, and perhaps aspirational?  Or, perhaps that they are the objective legalistic scale, without clear definition, to which all conflicts must be resolved?  Certainly, there is a great deal of history in our courts, and particularly the U.S. Supreme Court, in which these words are defined over the period of time, or if not defined, their limits are broadly described based on the particular facts of the case and the philosophies of the judges and justices.  Unfortunately, what makes this difficult, particularly as outlined ambiguously in Obergefell v. Hodges, these lines of thought are not all consistent with the history of the original meaning of these terms, nor even with the history of the Amendments when passed by Congress and ratified by the States.

So, what are we to make of the most recent U.S. Supreme Court decisions over the past few years that go to the heart of our ability to communicate, both rationally and relationally?  What are we to make of how they have turned so much of human history upside down, and are bound to open up a floodgate of litigation and unsettle life for a long time to come?  I will try to explore some of these questions in future posts and what they might mean for the culture and for civil society.