Monday, October 13, 2008

Of the rights of Pig

Or Legal Fiction

"The time has come," the Walrus said,
"To talk of many things:
Of shoes--and ships--and sealing-wax--
Of cabbages--and kings--
And why the sea is boiling hot--
And whether pigs have wings."

Lewis Carroll, The Walrus and the Carpenter from Through the Looking Glass.

Thus saying the Walrus showed aptitude for a certain kind of jurisprudence. He was well on the way to developing a position which extends the mere question of whether pigs have wings to the more important issue of the right of pigs to flight by their own power. After all, a careful reading of the answer given by the Walrus to the oysters, in Lewis Carroll's famous poem, clues us in to the fact that the Walrus had great potential to become a lawyer by profession.

Therefore, his question really meant, when translated into the language of law: "Does the Constitution not guarantee to pigs the same right as it does to birds, bats and winged insects? Will not the best and most exquisitely tortured logic aid in the discovery of this right, deeply embedded in the spaces between words, clearly vague, in the Constitution?"

Of course the whole issue of the nature of pigs, and whether indeed they have wings, and just what they would be able to do with wings if they had them, is of no concern to the Walrus. His concern, is, instead, an understanding of rights which is up to date, and the application of that understanding to pig-flight rights specifically. Nature, and the work of God are not relevant. This is because he holds an essentially atheist view of the rights of man- or in this case pig- which is not the correct understanding of what the American Founding Fathers meant by the very word "rights"- and yes, I know he is an English Walrus; but lawyers are lawyers, whether wigged barristers or well-suited attorneys.

In the Walrus' view, rights are created by men, and produced specifically by the government as acts of law. The idea that God has placed them in nature is completely alien to him (which is possibly due to his having too much about oyster breakfasts on his mind). He has assumed that the entire notion of rights is grounded in societal evolution, as the creation of created beings rather than of the Creator. Therefore, rights are what we say they are, not what they actually are as part of nature

If I am right about the Walrus, then it is very easy to believe that he could entertain, as well, a completely false notion of the institution of marriage. He would not understand it as God's own work, but would wrongly conclude that it is a product of society. He will not see that it is grounded in nature itself, as the work of God; he will think it is a man-made institution, and that it has evolved in history, and that it can be transformed by law because times have changed.

By failing to see that rights and marriage are not the products of society, law and government, he will believe that legislation or arbitrary judicial activism can change them into whatever he and his colleagues dictate. Likewise, the question of whether pigs have wings is secondary to the right of pigs to use wings. But, if nature cannot aid pigs to fly because God has not given them wings, then Mr. Walrus, esquire would be quite mistaken about the whole matter of rights altogether.

My argument against a pig’s right to fly is in line with the understanding of rights which the Founding Fathers put forth as the very basis of their reasoning both for Declaring Independence and for the Constitution. Before I proceed to argue against the Walrus or any lawyer who contends for the right of pigs to use wings (or for why Adam may marry Steve), I must point out that we should reject both extreme views of the men who gave us both American Independence, and later the Constitution.

In one school of thought they were all devout Christians basing their views on the Bible; in the other, they were all Deists who espoused anti-Christian pagan philosophy. Both of these points of view fail to give an accurate picture: In fact, they were among the most educated men of their generation, and were expressing an understanding that included the whole body of civilized thought from antiquity to modernity, aided by a unique strain of pure and genuine American character. (A young country? Perhaps; but never a child. When western civilization came of age, the result was the Constitution of the United States.)

They drew upon the Bible, the philosophy and history of the ancient world, and the experience of centuries of European weal and woe. Some were Christians; some were Deists, or at least very difficult to define, especially Jefferson. But, what they held in common, a view which makes sense from the standpoint of the whole Christian Tradition, is that rights deserve the protection of law and government because they have been given by God, and exist in His world as facts.

This means that their idea of rights was based upon "Nature and Nature's God" instead of upon the power of human governments. This alone gives justification to the belief that any government that becomes "destructive of these ends of right ought to be overthrown." This is the foundation of American philosophy, and it gives recognition to God as the Author of anything which justly can be called a "right." It was revolutionary conservatism, as strange as that may sound, because it was the conclusion of all that was held to be true over the whole history of civilization.

It means also that unless a right exists in nature, it does not exist at all. The only rights which governments are "instituted among men" to protect, are rights which are God-given. Whatever one may think of the religious beliefs of the individuals who were in the Continental Congress, and later the Constitutional Convention, this basic belief is impossible to defame as "un-Christian" pagan deism. In fact, it is, to borrow yet another phrase, "self-evident." Genuine rights belong to the creation of God, and exist really and truly as part of nature.

But, all of this goes over the head of the lawyers who argue for the right of pigs to fly.

The poor Walrus (if I am right about his professional aspirations to practice law) thinks that rights come from the law itself, that they are government inventions. He believes not only that they can change with the times, but that they must. He scoffs at the idea of Natural Law, preferring, apparently, a law that is essentially unnatural. I fear that, in addition to arguing for the right of pigs to fly by their own power, he will argue that a man may marry another man, a woman another woman, and perhaps, in time, that a man may even marry his horse. A right to marry according to one's preference is something that the State cannot justly deny; that is, once we wrongly assume that rights are man-made inventions through the power of law, and that marriage is an institution of societal evolution.

The Walrus has forgotten, if indeed he ever knew, that marriage was "instituted by God" and that it is part of nature. The story of Adam and Eve is meant to teach this very doctrine. And, as our Lord Jesus Christ explained it, it was the plan and work of God: "From the beginning of the creation God made them male and female. ‘For this cause shall a man leave his father and his mother, and cleave unto his wife, and they twain shall be one flesh'; so then they are no more twain, but one flesh. What therefore God hath joined together...". The laws which recognize and protect marriage are based upon the same concept of "Nature and Nature's God" spoken of directly in the Declaration of Independence, and which provides the rationale for the Constitutional Amendments which guarantee the protection of God-given rights.

The Walrus, should he ever appear for such a plaintiff as "Adam and Steve," would be correct about one thing however. The idea that two persons of the same sex can actually have a right to be married is worthy of the same consideration we must give to "whether pigs have wings."


poetreader said...

A good word, Father

"And why the sea is boiling hot--
And whether pigs have wings."

To attempt to argue an untruth into acceptance as fact is one of the most common activities of fallen humanity. One does that by asking whether something one knows to be true is actually false, and by marshalling whatever "evidence" can be made to appear supportive of the negative. It's done all the time concerning all sorts of matters, and it is done by all sorts of people of all sorts of political or religious affiliations. People are busily "proving" that one candidate is a Muslim, "proving that the holocaust is a big lie, "proving" that the Jews are behind all the ills of mankind, "proving" that a human fetus is not human, "proving" that marriage has nothing to do with reproduction and the existence of two distinct sexes.

This is precisely the technique ascribed to the serpent in Eden, who asked Eve, "Hath God said...?" when the answer to that was already known, but limited Eve's "choices" at that moment.

The whole concept of choice and of rights is a very problematic one. To assert MY rights, and especially MY right to choose (whatever the choice) is ultimately a very selfish thing, as a "right" claimed is invariably a limitation on the "rights" of someone else, sometimes blatantly (as in the "right" of a woman to deny the right to life of her unborn child), and sometimes more subtly.

Yes, God has created this problematic thing called free-will, and there are indeed choices to be made, but choices are not legitimately made for my own interest and according to my own desires, but (especially for Christians) first for the service of God, and second for the service of others. We are not called upon to be autonomous units, but to be servants, and to do so within the ground rules that have been set by Nature and Natures['s God, as revealed in the Scriptures and as lived by Our Lord.

The sea is not boiling hot.
Pigs do not have wings.
A zygote, embryo, or fetus is not an unliving bit of tissue.
Marriage is not an exercise in imaginative plumbing.
The Commandments hold true.


John A. Hollister said...

An excellent piece, Fr. Hart. You might almost be a lawyer!

I don't know if it helps or hurts the argument, but as you refer to "Mr. Walrus, esquire", and while old-fashioned lawyers in this country still address envelopes to each other as "John Smith, Esquire", that usage is a usurpation.

The last time the competent English court ruled on this question, about the time of the French and Indian War and therefore arguably as part of the law of England that was received by each one of the original Thirteen Colonies, it affirmed that "Lawyers are no gentlemen and are not entitled to write themselves Esquire".

More to the point, the arguments for recently-discovered "civil rights" such as deviate "marriage" are founded upon a subtle misuse of important legal concepts. At law, rights do not arise out of our personal desires but out of society's needs. There are no "rights" other than the ones society has selected as worth protection, a truth that is summed up in the old phrase, "No right without a remedy". This does not mean there must be a remedy for anything we want to claim as our right; it means that unless a remedy has been afforded to protect it, it is not a right.

So, too, with the concept of "equal protection of the laws". Implicit in its valid use is that the laws should apply equally to those who are similarly situated.

However, men who wish to have relationships with men, and women who wish to have relationships with women, are not situated similarly to men who wish to have permanent relationships with women or with women who wish to have permanent relationships with men. Those who wish to force society to subsidize homosexual and lesbian shack-ups never explain, because they cannot explain, how the unions of men and women, which tend to produce children and in which therefore all societies have taken and now take an intense interest, have anything to do with the relationships of men and men, or of women and women, which by their natures are sterile.

Instead, they implicitly deconstruct marriage by suggesting that it is motivated solely by sexual desire between the partners. While this undoubtedly plays a part in getting them interested in each other in the first place, and certainly contributes to a healthy marriage after the fact, it ignores the obvious reality that there are a great many heterosexual relationships out there which are not married ones. So sexual desire, or even sexual desire followed by sexual activity, is not the exclusive characteristic of marriage.

Even the most fanatic equine aficionados have never set up a stud book for mules, for there would be no point in doing so. Similarly, society at large has no legitimate interest in fostering and protecting homosexual and lesbian pairings because all the impulses that underlie these are purely personal, hedonistic ones, which have no positive social implications.

Society has no business fostering or promoting personal recreational choices. Regulating them in some situations, certainly, as when we put opening and closing dates on hunting seasons and impose bag limits. Foster them, certainly not. After all, my recreation may be your abomination, so why should you be forced to pay for it, even in part?

If I were a deer hunter, would it be reasonable for me to expect my neighbors to pay higher taxes, and to pay higher prices for the goods and services they consume, to subsidize my hobby? This, however, is precisely what the proponents of homosexual and lesbian "rights" wish to do. They want to pair up, so they construe that wish as a Constitutional mandate for society to pay them to do so.

If same-sex couples wish to have equal access to hospital rooms, let them execute durable health-care powers of attorney. If they wish to have health insurance, let each partner go out and get a job for society has no reason to encourage one of them to stay at home to be supported by the other. If they wish to have inheritance rights, let them be forehanded enough to write wills.

Everything they may legitimately wish to achieve they can already achieve if they will only take a very small amount of trouble. And, contrary to their propaganda, they already have the right to marry, they just have chosen not to exercise that right. Instead, they have chosen to follow their personal inclinations away from the male/female nexus which is the reason society defines and recognizes marriage.

John A. Hollister+

Anonymous said...

And, at the risk of being banned or having the comment rejected for being off topic, I'd like to add that the question of the ordination of women is not a question of permissibility, but of possibility;-)

poetreader said...

I think I follow Canon Hollister's intent and reasoning here, but I have to comment, from the rather different viewpoint that has been my lot for all my life, that it could appear a bit dismissive of the strength and burden that some of us have had to labor under for long periods of time. One does not choose to experience same-sex attraction. That would be a very stupid choice to make as it is, at best, decidedly inconvenient to be a homosexual person. Even without considering the legal and societal sanctions that are ordinarily in place, to be preponderantly so attracted is to be excluded from much of the normal working of society. This would be so, even were "marriage" to be permitted. The natural reproductive and familial unit simply has a different purpose and operation from any less biologically determined arrangement. I, at least, did not choose to be homosexually inclined, and certainly would not have so chosen. I don't know where such an "orientation" comes from or what causes it, and am not sure that is a profitable question, but it is there, and the right question is what to do with it.

Are all the impulses that sometimes lead to such pairings, therefore devoid of positive social implications? I don't think that is a reasonable deduction. We do know that homosexual activity is not acceptable to God. We also know that extremely close friendships, such as would receive opprobrium from most present-day "conservatives" have been richly blessed of God -- David and Jonathan, for example. There's not a shadow of improper activity involved, but the description in Holy Writ certainly approaches the embarrassing for many moderns. It is also a well-remarked fact that such inclinations are often linked with creativity such that humanity (and the church itself) has been blessed. The point is that the hand we a dealt is the hand we need to play, and, in the spirit of Romans 8:28, it can be played honorably to the glory of God. However, it must be played by the rules, which are the same for everyone: no sex outside of marriage, and no marriage other than what God has instituted.

I'm not arguing with you, Fr. Hollister. Your whole statement, though a bit more lawyerly that I'm comfortable with (which is to be expected from a man of your background) is precise and accurate, but I am quibbling a little with what could be seen as a dismissive tone. Those of us who carry this very strange burden, and who have chosen to seek after holiness, do not have it easy at all. You are quite correct as to the choices we are required to make, and, with God's help they can be made, but it is not at all easy for some of us to make those choices, and we must also make them in a world that now tells us we are stupid for attempting to do so. A bit of comment from this viewpoint seemed necessary here.


Anonymous said...

An interesting read, Father Hart. Satire is a very effective tool for putting across a point.

I have a question, if I may. I am in the UK, and by and large, "gay marriage" is a non-issue here, at least in the circles wherein I move.

First some background: some years ago I had two very close friends. Let's call them Philip and Alan (for those were their names). Philip and Alan had been together at this point for just under 40 years. Both were committed Christians (whether they were "good" Christians is irrelevant to the point of this story).

Alan was diagnosed with a neuro-degenerative disease, which over the course of a couple of years gradually robbed him of his ability to communicate with the outside world. Movement, touch, sight, taste... all the senses gradually failed him, perhaps most cruelly of all it seems that his hearing was the last thing to go, and I have this awful feeling that he was aware of the scene which I am about to relate, but could not express his wishes.

For the last 9 months of his life, Alan was in hospital, benefitting from progressively increasing care, as his condition worsened. Philip was at his side constantly. After all, they had been together for such a long time. Philip insisted on doing as much of the actual "caring" (as opposed to nursing) as possible, and while Alan was still able to communicate, this was all well and good.

Here I must mention Alan's sister, Dorothy. Dorothy was also a committed Christian, who was quite convinced that Alan and Philip were going to burn in hell for their unnatural lusts - but especially Philip, who had clearly seduced her brother. The relationship between brother and sister was not a happy one, I fear.

A little less than 6 weeks before Alan died, he became uncommunicative. Not unconscious - his brain still registered as being alert - but his condition had deteriorated to the point that his mind was a prisoner of his body. With her solicitor in tow, Dorothy - legally the next of kin - ordered Philip to leave Alan's bedside, and instructed the staff to refuse him access. I hope I need not describe the situation in detail, this happened 15 years ago and I am still upset by the incident. Philip remonstrated, argued, pleaded and finally begged first Dorothy and then the hospital management to let him spend those last days with the man with whom he had loved and shared his life for so long. I was there on the last such occasion. Dorothy called him a demon enfleshed, and the hospital despite their discomfort, were obliged to honour the wishes of Alan's next of kin, particularly since he had left no written instructions (and the legal status of such instructions would have been questionable anyway).

Philip had a nervous breakdown shortly after this incident with Dorothy, and was himself hospitalised. When he was released, he discovered that his partner had died some days previously. He was unable to learn any details, even funeral details, from the hospital administration, who directed him to the next of kin. He sent several letters to Dorothy begging her to tell him where Alan was buried. Eventually he had a letter in reply: Alan had been cremated and his ashes scattered on a windy day. He was not given a Christian burial, nor was he buried in consecrated ground. Philip never learned where Alan's ashes had been scattered.

The following year, the day after Alan's birthday, Philip hanged himself.

Today in England such things can be avoided. There is the civil partnership. This civil arrangement makes homosexual couples each other's legal next of kin - precisely to prevent this sort of situation. Civil partnership is not "marriage". Philip did not want to "marry" Alan. In fact, I think he rather disapproved of such a nonsensical idea. What he wanted was to stay by his partner's side all the days of his life, to see that he had a Christian death, and to have him laid to rest beside his parents.

This is why I, despite being religiously opposed to homosexual acts, wrote to my MP on several occasions to voice my support for the civil partnership legislation, and when it became law I rejoiced. I fervently believe that, if the sins were weighed in a balance, Dorothy's actions would far outweigh those of Alan and Philip. My question, father: am I, was I wrong?

Fr. Robert Hart said...

Sandra McColl wrote:
And, at the risk of being banned or having the comment rejected for being off topic...

Why mock ye so at SFIF? You know we operate on a higher level here, so I assume you mean that one of them will stumble onto your comment, notice the orthodoxy, and ban you over there as a preventive act to keep their blog free from the truth of the matter.

...I'd like to add that the question of the ordination of women is not a question of permissibility, but of possibility;-)

That is, of course, one of the links between WO and SS blessing. They both treat the impossible as a matter of asserting some kind of right that God, due to an obvious flaw in Divine judgment, failed to create.

Anonymous in England wrote:

My question, father: am I, was I wrong?

Yes and no. Legislation or Canon Law or Rubrics become dangerous whenever the institution of marriage can be threatened. So, support for these changes is support for a very dangerous solution, like prescribing poison as a cure.

But, the story shows why Christians must be compassionate, and why our method must be persuasion in cases of adult behavior, not coercion as if we were correcting children. Forcing her will on these men probably did not bring either of them to repentance, and her treatment of the man who eventually killed himself only made it impossible for her to act as a Christian witness to him.

John A. Hollister said...

Ed Pacht (the Poetreader) felt my analysis may have been dismissive of the burdens borne by those who suffer physical attractions to others of their own sex.

I am not sure what I wrote that gave him that impression and it was certainly not my intention to do so. There is absolutely no question that those who have been so visited have a very difficult time living a holy life (as, indeed, do all of us) and many of them struggle heroically to do so.

I was simply addressing a completely different issue, which is the problem of the sloppy reasoning and failure to define first principles that infects the entire current social and political debate -- and, as we have seen in the past week, too much judicial "reasoning" as well.

That is a peculiarly and technically legal issue, so I would not be surprised if my analysis were not "lawyerly" in its form and tone. And as Ed knows, not only is that the discipline in which I received my primary training, but that training was reinforced both by aspects of my practice but also by five years of teaching Constitutional Law in a law school. To some extent, we are what we have done.

Even nonlawyers, however, should readily see that society has no reason to involve itself in any interpersonal relationship unless that relationship either threatens society's wellbeing (as when one of its partners is under age or some other incapacity) or when it is so important to society that society needs to encourage ad protect it (as when it is the normal vehicle for producing and rearing children). Otherwise, any position other than a "hands off" one is a waste of very limited social resources.

The "civil unions" Anonymous cited (the only Anonymous yet on this thread) are really just a sort of sham marriage, intended by politicians as a sop thrown to the advocates of same-sex marriage that will simultaneously be sufficiently like marriage to keep them quiet and sufficiently distinguishable from real marriage to keep the Christians, Jews, Mormons, and Muslims from rising in wrath and throwing those same politicians out of office.

The solution for situations such as that of the Philip and Alan described by Anonymous would be, at least in the United States today, to have a durable healthcare power of attorney in favor of the surviving partner, coupled with a will designating the other partner as sole heir, executor, and person to make funeral arrangements.

To make assurance doubly sure, the ill partner, while still capable of communicating, could have petitioned the appropriate court to appoint his partner as guardian of his person and estate. Those steps should have been more than sufficient to hold the hostile sister at bay.

There is no need, and no excuse, for altering and redefining the basic building-blocks of society in order to cure a small number of extreme situations that could have been dealt with prudently by the persons involved.

John A. Hollister+

Anonymous said...

I wonder whether, in this day of increasing numbers of single people who, for one reason or another, feel closer to and more in tune with the values of a friend who is not a relative, than they do to their legal 'next of kin', we shouldn't roll medical and enduring financial powers of attorney and the like into a declaration that a nominated person (who accepts the nomination) is to take the place of 'next of kin'. Unlike a quasi-marriage, it wouldn't necessarily have to be mutual--my brother is likely to be my next of kin if we both survive my parents, but he has a wife and children who will take precedence over me, so an elective next-of-kin (or, perhaps, next-of-affinity) might also have someone else who took precedence over me. Of course, a medical PoA, an enduring financial PoA (or whatever equivalent instrument you have over there) and an appropriately worded will might have the same effect, but the advantage of all these would be that we wouldn't have to look into the bedroom of the donor, or into the nature of the relationship between donor and recipient. It would also reflect the reality of the fragmentation of traditional family structures and the plurality of values, even within families, of present-day western society. I think it comes down to the question whether we are trying to make it possible to order their affairs so that the person making decisions for them, or to whom they owe the greatest duties, is a person with whom they have a true affinity, or whether we are merely validating domestic partnerships founded on eccentric sexual habits.

poetreader said...

Thank you, Fr. Hollister, for a response as fine as I was hoping for. On my first reading I was not much bothered by your original post, but I received privately a message from a friend who was much bothered by it. On rereading I could see how some of the way things were said could be taken in such a fashion (which is why I wrote "could appear ...", rather than "is ..."). Though I know you well enough to have been sure such dismissiveness was not your intent, I felt it right to add some heartfelt observations and to give you a chance to clarify your own thoughts. You have done so magnificently.

Yes, your legal training certainly shows, and not to your detriment. The problem I was referencing is that such "lawyerly" discourse, if well-done, tends to place logical reasoning in such prominence that the emotional dimensions of the question my be left aside. While emotion without reason is nothing but foolishness, reason without emotion is a bit inhuman -- as in all things a balance is to be striven for.