Losing the Culture War
By John Snyder

Things fall apart; the centre cannot hold;
Mere anarchy is loosed upon the world,
The blood-dimmed tide is loosed, and everywhere
The ceremony of innocence is drowned;
The best lack all conviction, while the worst
Are full of passionate intensity.

--W.B.Yeats

Forty years ago in Griswold v. Connecticut [1] the Supreme Court of the United States determined that there was no rational basis for any state to deny contraceptive use to married couples. As these wise men saw it (a majority of seven of them), there could be no logically defensible argument for legal intrusions into the marriage bedroom-a nice thought-and therefore there were no constraints that any state was entitled to impose on the union of a man and a woman. As a nation-over all- our libertarian sentiments seemed vindicated. Why, we might ask, should the state have any business supervising the sexual conduct of married couples?

It is a good question.

It is hard for our modern culture to imagine any good reason for the state to intervene in such matters of personal behavior. Apparently the nation could see no rational reason back in 1960. And so it remains today. We are not inclined to revisit such anachronistic questions. The right over one's self and one's body has become, by judicial fiat, more of an absolute right than any expressly stated in our Bill of Rights. In many ways it has become the preeminent right of all. And so we smile the smile of liberty enlightening the world.

But there is a tiny hitch-one so miniscule that hardly anyone notices.

You see, while our federal government has clearly not been granted constitutional power to define marriage, in our post-Christian society, the only competent institution remaining to define the duties, limits and purposes of marriage is, by default-the state. Now the strange problem here is that if the state is the author of marriage (no other conclusion can be properly derived to the contrary-since God is to be viewed only as a constructive fiction for the purpose of jurisprudential theory)-it is the state that ordains and creates the instrumentality of matrimonial union. But a strange paradox ensues, for according to the Supreme wisdom of the Court-the same state which allows privacy to trump all state powers to limit personal choice-somehow simultaneously insists that it will define and create that which it has no power to define. And to enforce that which, by its own judicial reasoning, it had no reason to define, limit or license.

I personally think this is kind of a problem.

In fact I am pretty sure it is a problem. But of course, it is no greater problem than should be expected when law is not governed by reason but by willfulness. For some people this might seem a bit odd and fussbudgety. But oddities are aberrations only to those who suffer to live within the sometimes unpleasant requirements of a coherent worldview. And no such complication seems yet to have intruded into the maximal freedom Weltanschauung and its Wicca priests on the Supreme Court.

And so what America discovered in the Griswold case was that seven justices had also discovered in the penumbras and emanations of the Constitution an earlier yet undiscovered and non-express right to privacy- which meant, in short, the right to have sex outside of wedlock. Pretty good stuff, yeah? There was a whole lotta discoverin' goin' on.

And the sixties were born.

A little later, because incoherence is, to all counterfeit views of reality, always more coherent than coherence itself, the post-modern Supreme Court boldly strode out of the bourgeois ethic that requires a worldview to actually correspond to reality. What it declared, ex cathedra [2] according to an ex nihilo [3] tradition, was to challenge any rational basis of state action in exercising police powers over the health, safety and morals of its citizens. In short, the new tradition overcame the old tradition and therefore it followed that, if married couples can sexually conjoin without contraceptives, gee whiz, so should un married couples! The logic is impeccable. That was the Eisenstadt [4] case. The necessities of cohering to the incoherent was already hardening into a liberating madness. And Nietzsche smiled.

And the sexual revolution was on.

A number of years later, that same right of privacy discovered by the Supreme Court, was expanded in our Republic without consultation with the People, in a now-famous line of cases beginning with Roe v. Wade [5] . In the enlightened tradition of Dred Scott [6] , again seven priest-kings imposed their superior intelligence upon the benighted masses. Despite almost universal state laws to the contrary, it was discovered further (Yes, there is much adventure in the staid recesses of jurisprudence to discover whole new continents of legal reasoning.) that women, independent of their husbands, had a right to kill their baby. And why not? The state has no right to place any control over our bodies or our personal choices. That's what Griswold said. That is what was confirmed in Eisenstadt . The obvious jurisprudential principle here is-clearly-that the state has no rational authority to require people to behave responsibly when it comes to sexual activity. Sex is a part of, perhaps foundational to, maximal freedom. Indeed, it is freedom itself.

Of course, this reasoning does not explain to me, why I do not have a right to sell my kidneys, or to use drugs. Or for all that-to commit suicide on the internet and sell the rights to a television producer. Perhaps someday, as we come closer to our brave world, future generations will enjoy the right to view and participate in gladiatorial combat or legal snuff films, but unfortunately we have not yet arrived at that level of enlightenment. But allow me for a moment the sagacity to foretell that these joyous liberties are approaching with striding steps.

And so, strange as it may seem, once upon a time, in a benighted age, there was a deep cultural prejudice (we hate that word-perhaps I should say "revulsion"-that is much more bourgeois) against such expansive notions of liberty. In fact, no one in that former time would have dreamt that these expressions of liberte were rights and freedoms at all! Their morally congested sensibilities would have declared them inconsistent (should I use the word "incoherent"?) with the fundamental idea of human dignity. They would have insisted that any notion that man is, and may do, anything he wants-is actually antithetical to the very notion of a scheme of ordered liberty, ennobled and expressed by the idea of the rule of law or predicated on the preservation of human dignity.

But where was I?

So once upon a time the common wisdom was that , if you provided contraception to unmarried couples, you would be encouraging more irresponsible sexual relations outside of marriage, not more restraint. But be that as unenlighted as it may seem to us-the rational relationship that existed between the regulation of sexual behavior-no matter how foreign to our modern notions of radical autonomy-was at that time, a given of culture. Even more strange was the commonly and universally held belief that the state had a stake, and a very important stake, in the sexual behavior of its citizens. You see, at that time, people actually believed that families existed in very large part to make babies. Babies become men and women. And a healthy, vibrant, economically prosperous and militarily strong state depended on men and women-which were-to reiterate (the syllogisms are difficult to follow) all this depended on a strong influx of babies. Of course, no educated person today could possible hold to such archaic drivel. But, as I must attempt to elucidate on these former mythologies, I beg your indulgence.

This seems painfully obvious to the generations that have preceded our own and everyone nowadays knows that those dark medieval times, filled with sexually oppressive and snooping block sergeants who detested sex. But that is what they thought. And so while it seems quaint nowadays-allow me to adventure into the irrational past, and provide a humorous glimpse into their child-like reasoning, however preposterous it will seem to our more refined and elevated standards..

You see, sex produced babies, so the reasoning went. And sexual relations conducted outside of stable relationships are likely, (as silly as this sounds-I blush even to convey such superstition) to produce children and social obligations that extend far beyond the momentary bliss of copulation. At very least, such behavior encouraged the spread of disease. Yes, sexual activity with multiple partners seemed at that time to be a way of spreading disease. But way back then the ideas of producing babes and having sex, provided a reason for the state to interfere, (we would call it licensing) that behavior. In short, babes at very least meant schools and hospital and social welfare costs. And at worst, they meant unwanted, discarded children abandoned by irresponsible, impulsive people; adoption litigation, more crime, disease, hunger, depression, prisons, and growing police forces-and an ACLU to watch over the expanding state apparatus. Yes, I realize this is astonishingly naïve thinking- characteristic both of heartless Republican accountants and sexually repressed Baptist ministers- but, alas, this was their uninformed prejudice. But that is what pre- Griswold America believed. But we live a vastly more sensitive and mature time now. We have achieved a vastly greater freedom behind the iron bars on our windows and doors, than could ever have been dreamt of prior to the striding and sagacious liberators on the Supreme Court of the United States . Why would anyone want to live in the world of Andy Griffith and Leave it to Beaver ?

Now, interestingly, fifteen years later, in this aust en draug against the barbarians of sexual repression, the sixties revolution was in full swing. And any woman who understood exactly what Griswold meant, demanded her right also to be irresponsible. Because, that is what Griswold meant-it meant people have a right to fornicate and create babies they really do not want. In marriage, there is a social covenant that supports the idea of family, but sex outside of marriage provides no such stability, hence two things must occur: the growth of a gigantic network of social programs to provide for children who have weak or non-existent social support in the form of marriage, or the better solution, the one provided by Roe v. Wade , the "right" to kill your unwanted baby.

Of course, the enlightened secular world will not and cannot follow this incoherent reasoning. There is simply no rational relationship between contraception provided outside of marriage, and the wild increase in sexually transmitted diseases, crime, drugs and, of course, abortion. There is NO relationship at all. In fact, the statistical data after the Griswold decision apparently showing skyrocketing social ills in almost all categories of measured dysfunction is really only just an historical coincidence. The fact that couples protected by the right of privacy, may now rent a room together at a motel, has nothing to do with the increases in divorce, out of wedlock pregnancy, sexual disease or government social expenditures. Private acts protected by the right of privacy have no consequences that society should be concerned about. These are clearly the paranoid delusions of conspiracy theorists. Nevertheless this was the argument conjured by the antediluvian culture of those bygone days, not to mention those and their Christian, sex-hating cousins.

Of course, the good news is that many on the political right have embraced the central libertarian notion that everyone has a fundamental and incontestable right to sex. The state has no proper role in limiting or constraining such joyous behavior. Now the Bible speaks of sex as only acceptable within marriage, but of course, the Bible has no legal standing, and very little, if any, cultural clout. Indeed, the modern church is way beyond that-because sex really is just another choice, a right. It is part and parcel of the importance of "defining the mystery of human life." [7]

And that is what freedom is, isn't it? For Christianity is really all about choices and freedom and love, isn't it?

Anyway, then came the 90's and homosexuals, male and female alike, suddenly burst out of closet we didn't even know we had. And they demanded a right to marry. And the conservatives and the Christians were horrified. They squeamishly protested that homosexuality is abnormal. But the APA (the American Psychological Association) already had declared that old idea-

quite passe . And the conservatives and the Christians protested that God had not ordained such unions. But Anglicans and Unitarians had already marched out of that sexual Goshen . And the Moral Majority began to murmur about laws, and amendments, and the nature of marriage. But Christians and Conservatives are just silly people.

Why?

Because you see, if there is no rational relationship between regulating sex, regulating contraception, regulating the sexual act, such that married and unmarried couples may equally engage in the sexual act and produce children, and that the state through an expanded welfare state will simply absorb the social cost of casual sexual relations, in health costs, education costs, in social costs, and in psychological costs-such that marriage in only an arbitrary choice made by some more traditional fuddy-duddies, then it is a distinction without a difference . Yes, I know that there are certain "rights" that married couples have that non-married couples do not have. For instance, there is the right of a married couple to be taxed at a higher rate than a single person. Oh, what about, wills and property division? Well, all that can be gotten through contract and powers-of-attorney. So really the only difference in our brave new post- Griswold-Eisenstadt-Roe world is that married couples can file the short form for social benefits and everyone else has to file the long form.

And this, of course, is unfair.

In fact, the state, (that's you and me) no longer recognizes any purpose to marriage at all. Loving someone is really the only point of marriage. (Of course one wonders why the state should even regard love as something to license -but again I am veering from the clear reasoning of modern Constitutional jurisprudence). Raising children out-of-wedlock means social subsidies, free health care, WIC programs, subsidized housing and free school lunches. You see, marriage is a legal distinction without a difference. Anyone shacking up, or sleeping together or producing children will have their children taken care of, with or without a marriage vow. So, ineluctably, marriage is not and cannot be, by any legal argument, based on a rational relationship of regulating the sexual act and encouraging or discouraging responsibility.

That is simply an absurd argument. Completely absurd.

The only reason one might want to get married is to receive somehow an invisible imprimatur from the state, and that by its nature-a something that should be allowed equally to all persons. There cannot be any rational basis for discrimination between kinds of persons in application to marriage, when marriage and non-marriage are substantially indecipherable. To do so would be violative of equal protection. It would be to vest in one party the invidious distinction of being unmarried, for no reason other than that you believe they should not be married. It is to brand them with the incidences and badges of second-class citizenship.

Hence the modern argument about homosexual marriage is already framed. The argument is not whether marriage should be between a man and a woman. It cannot presently involve any question as to the purpose or proper place for the sexual act, or furthermore, the best environs for the raising of children. That logical relationship vanished when the court found no rational relationship between babies and marriage. Those questions have already been decided for us by the modern welfare state and a string of powerful Supreme Court cases that go back fifty years. The only real question remains is this: what's the point of getting married at all? What license, privilege or immunity, (for that is the purpose of a license) is bestowed upon one person that others cannot enjoy without a similar privilege being assigned-if marriage bestows no special state status, or right, or privilege-especially if there is no purpose to marriage?

Well the reason is that marriage still is an imprimatur of some sort. It is like a family crest, or title of nobility for a man who owns no manor or estate. It is the fiat coin of a kingdom now gone defunct-A Coat of Arms for a man with no pedigree. It has only value of possessing some genteel respectability for a bygone state of things-there is otherwise absolutely no substance to it. And of course, our Constitution prohibits the granting of titles of nobility. In short, marriage admits you into certain circles. Hence there can be no rational relation to a compelling state interest to give title of privilege to one set of persons without there being some substantive reason for doing so. And the modern condition of marriage provides no such reason rationale.

Absolutely none.

We have already lost this argument against homosexual marriage. In fact we have lost the argument against polygamy, polyandry, euthanasia, and of course, child murder. Just go back to sleep. Tune into the next football game. Venture out among the immigrants at the park and watch their children play. They are the only future for America . And to speak truth, it is a better future than you have a right to ask for. You could not see the obvious. No point to waking up now. You've been sleeping through the greatest cultural revolution in history, and it was obviously boring you. Go back to reading Tim La Haye.

That's what Christians do best.

[1] 381 U.S. 479 (1965)

[2] "by virtue of or in the exercise of one's office or position" (Merriam-Webster's 11th Collegiate Dictionary (2004))

[3] "from or out of nothing" (Merriam-Webster's 11th Collegiate Dictionary (2004))

[4] Eisenstadt v. Baird, 405 U.S. 438 (1972)

[5] 410 U.S. 113 (1973)

[6] Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857)

[7] "These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." Planned Parenthood of Southeastern PA. v. Casey, 505 U.S. 833, 851 (1992).