29 June 2011

Open Letter to Governor Andrew M. Cuomo

by Frank Turk

Dear Gov. Cuomo --

Well, nice work. As an ex-New Yorker, I have an interest in what happens in the state of my birth, and this week you have the spotlight. If the press can be trusted to make a keen snap judgment about current events' long-term impact, you've done something Bill Clinton and Barack Obama could not accomplish: you have changed the face of the debate over the definition of marriage in the English-speaking world forever. You had help, of course, and to list all the sponsors of A08354 would be a little oppressive. But let's make it clear that the bill was introduced "at the request of the Governor." So to you, I offer congratulations that you have accomplished what you have set out to do here.

Let's look at your handiwork, shall we?

click to enlarge
Unlike a lot of laws, this one fits nicely on two pages and has one simple purpose: it's an act to amend the domestic relations law, in relation to the ability to marry. Now, to that end, it says one thing simply and explicitly: "Marriage is a fundamental human right." It's in green in the image above in case someone can't find it, and I credit you and the legislators who penned this document for saying what you mean right up front.

The inspiration for this document is the political premise that marriage is just like voting or property rights. It's just like the right to bear arms, or the right to assemble. That is: no one should be refused marriage if they require it.

Now, at this point, many people on my side of this discussion would leap immediately into the question of what this can possibly mean -- they want to push you immediately down the slippery slope, and say, "well, what about three people who want to be married? What about 5 people who want to be married like those citizens on 'Sister Wives'? What about that?" I think you were clever enough to short-circuit that by making the language of the law only a disqualification of gender-specific language -- not a complete dismantling of all legal standards about the union of two citizens. So for example, bigamy, adultery and incest are all still right out thanks to Penal Law § 255, esp. 255.15, 255.17 and so on. And that's because some things are still wrong, still harmful to society in some sense.

That, by the way, is what gives me hope that this letter can still have some way to reach you. You didn't undo the whole institution, and if I may say so, you still have daughters for whom I am certain you want the best of all things, including a loving marriage where there is no bigamy, adultery, or incest. This is what we all want for our children.

And I think this is part of what motivates you in this law -- the people who have children who are not attracted to a heterosexual union. It is pity for them, and for the avowed happiness of those children, which causes you to say it this way: "Marriage is a fundamental human right."

Now, I think you're wrong about this. I think you and yours have bit off way more than you can politically chew by calling "marriage" a "right", especially since, for example, it is something the government establishes and recognizes by issuing a license. But that's actually my problem, not yours -- because even if I'm right about that, your new law is actually the law now whether you have hung it on the right philosophical hook or not.

What interests me, though, is the parts that come later -- the parts I have highlighted in yellow and red in the sections after the meat and potatoes.

Consider the yellow section: Section 10-B parts 1 & 2 make a pretty broad exception to this new law. In reference to the fundamental right of citizens to marry, you have set something aside: the necessity that any religious organization either marry these people or offer them the use of their buildings. While Marriage is defined as a "fundamental right," someone turned away, for example, by the Catholic Church as not their type cannot thereafter sue the Catholic Church either as a civil claim or any other claim that could come to court.

Now: I get it. This was the hang-up as late as the 6th of June when the "staunch" republicans made it clear that if this law caused the Catholics or anyone else to have to perform the religious ceremony for any couple and not just man/woman couples, the law was DOA. So this exemption was to eliminate opposition to the law on religious grounds.

But what if I'm a Muslim from Sudan, where slavery is legal, and I want to bring my slave with me from my homeland while I am here on business for a year or two. An actual fundamental right in our country is the right to human liberty: that is, slavery is categorically forbidden. Liberty is an actual, fundamental right. There is no way the competing right of religious freedom (of a slave owner) overcomes the right to liberty, and anyone arguing for such a thing would be hectored to repent.

So if the religions of the people of NY state are wrong, and they are denying a fundamental human right to anyone -- even one Sudanese slave here for a short visit with his owner -- winking at it like this is either extraordinarily-shrewd or incredibly jaded. Yet here it is in the law of New York State: a new definition of the administration of a fundamental right!

It's sort of stunning. What the state is here saying is that there are human rights not worth enforcing for the sake of religious freedom. And it goes on through the red parts there as well -- not only do the religious have the right not to administer marriage two citizens of the wrong flavor, they also have the right to refuse to employ them, rent them property, and admit them to membership. And further, not only is the organization exempted from all this, but so are all its clergy, ministers and leaders!

That is: we have a fundamental human right defined here as being nothing that the religious have to worry about providing.

For all the partying that went on this weekend, I think the people celebrating didn't read the fine print very well. All they gained was the restrictions under law for how they can treat each other, including the claims someone else can lay on their property and person, with no obligation of the chief opponents of what they are doing to recognize in any way that they are doing it.

I'm not sure how you engineered that, but I have to say: well done. Your Dad always came across as extraodinarily-clever and informed when he was Governor, but even he never pulled off something this monumentally-ethereal.

Somehow, you seem to have (at least for the time being) gotten it both ways. Somehow you have made marriage a fundamental right and a thing its opponents have no obligation to accept.

If you could figure out how to do that with the National Debt, you could literally become the king of the world.

Good luck with that, and with the remainder of your term as Governor. I leave this for you to consider with sincere best wishes and the hope that you will know for certain the Jesus of Nazareth is both Lord and Christ.









54 comments:

The Bible Christian said...

Frank you wrote: "Let's look at your handiwork, shall we?"

Maybe he and should have looked at God's !

Therefore God gave them over Romans 1:24, 26, 28

I too hope he considers Jesus Christ both Lord and Savior... Now rather than later.

Robert said...

I'm not sure whether I should be amazed at this language passing or be upset at those who sold out just to get that language out in. This type of toying with words and concepts is what brings us from tolerance to acceptance. I am sure it won't take long before the protections for the church are tossed and then the church is asked to compromise. I pray that the church won't try to use cleverness of speech to allow for compromise...although many churches already have.

Chris Cole said...

You have committed the same error that has been so common in the discussion of this issue: the confusion of whether certain types of marriage should occur with the question of the government role. Those are logically-distinct questions. I believe that we have committed an error in turning marriage over to government. That isn't biblical. The only place in the Bible where government is given a role in marriage is in Ruth 4:9, in which Boaz INFORMS the town elders of his marriage contract with Ruth. Note that he doesn't ask their permission; he informs them of a contract already executed. I suggest, therefore, that the only legitimate role for government is to guarantee that there is no force or fraud in a marriage contract. That eliminates the whole political issue.

Frank Turk said...

Hi Chris --

Let's make sure we grasp something here: there is a distinction between making our own affirmative case for what marriage is, and addressing the flaws of the affirmations of the other side based on their own merits. You know: Gov. Cuomo doesn't really have any cares about the Christian epistemology and metaphysics which define marriage. We can see that right away in the language he chooses to define his premises. So to go to him and say, "well, I disagree about your premises," doesn't get us anywhere.

And the impasse is exactly the reason you list: the distinction between the secular state and the church. The state will never be the church, and it rules over believers and unbelievers. It will never be an engine of pure holy justice until Christ's final givernment is established and the final judgment is complete. There is going to be a disconnect between what the secular state will settle for and what God's moral law requires -- and even though I can't flesh this out today due to time, that's probably as it should be. To have a state which punishes us with death the first time we lie or commit idolatry would not be a great environment in which to preach the Gospel -- since all the sinners would be dead.

So my approach to this letter is simple: to ask the question, "is it internally consistent for the state to define marriage as a 'fundamental human right'?" I think the answer is "no," and the reason this answer is helpful is specifically the issue I uncovered in the letter: the problem comes when we have to decide whether or not the government can or will force the church to support its edict.

Plainly: NY State has decided that the government cannot force any religion to enforce its edict. But if this is true, how can the right be "fundamental"? The right to carry money is fundamental, and anyone who tries to stop you from carrying money is breaking the law -- whether he's a cardinal or a criminal. But the pastor who will not marry a same-sex couple is not here criminalized.

That's the problem Gov. Cuomo has to sort out. We'll see if he can do it.

You could also read this post by me from 3 years ago regarding what I think about the definition of marriage.

Brad Williams said...

I dunno Frank. I think that the right to marry is a fundamental right. I just do not believe that it is a fundamental right by the way they are defining marriage.

I think you have done a brilliant, if frightening job, of pointing out their inconsistency. I say frightening because clever people of all opinions can see this type of thing, and they will realize that one thing has to give: the new definition of marriage, or the ability for the church to deny a fundamental right.

Which way do you think that will turn out?

Frank Turk said...

Brad --

There's no question how it will turn out: Christ will return and judge the living and the dead.

It's just a question of sooner or later, and these days I am starting to pray for sooner. But I also realize that's my hard heart talking, and that it's activitiues like this one in New York which makes the urgency of evangelism all the more obvious.

As to how NY will decide regarding whteher it can force churches to do what the law says they must, I am actually praying for Gov. Cuomo. This is a divorced man with daugthers. I think he has all the general revelation he needs to see this clearly and now it will take an act of God to finish the job. My hope is that God's act will be to save him and not to condemn him -- becuase a ruler facing that kind of condemnation will be open to all manner of injustice under the cover of what will be necessary.

CTaylor3113 said...

This past weekend we had the annual Fireworks show in Detroit. It was beautifful as usual. One of the last few songs that played was God Bless America, It made be sad....in the last week or so NBC omits "Under God" during the pledge at the US Open. NY passed this new law. And here we are asking for God to bless America? Great article Frank! I too have been been praying for sooner but as you say "thats my hard heart talking"

Steven A Mitchell said...

Frank,

You make two good points and one bad point.

The first good point is that there exists a philosophical problem with calling something a 'fundamental human right' when its nature presupposes the existence of governmental licensure. One can say that coupling may be a fundamental human right, regardless of sex, but one cannot say that it is a fundamental human right to have a government legally recognize that coupling. In order for a right to be a fundamental human one, it must have equal validity regardless of the [non-]existence of a governmental power. Otherwise it can only be categorized as a fundamental legal right. I suppose this is a casualty of the rhetorical preference for calling everything and its mother a fundamental human right.

The second good point regards Sect. 3 of the bill (amending Sect. 10-B of the code). The current scheme of the New York legal system is that the government licenses the marriage of two persons, and deputizes various bodies to administer that office: municipal officers, judges, justices, clergy, &c. So it is a bit disingenuous for the state to allow such deputies to refuse to perform certain acts entailed from that office, when the state itself may not. That said, as far as I'm aware, clergy may already refuse to perform a ceremony for reasons of conscience. If true, this law merely extends that exemption by making clear that same-sex marriages may legitimately fall within that category.

But your commentary on your red-highlighted sections miss the mark. For it supposes that the exercise of a legally protected right may not have private consequences. This is a curious supposition. This would mean that one, as an employer, could not base an employment decision based on an applicant's exercise of speech or contract rights. Yet clearly we allow such business decisions. The reason the new law is actually remarkable is because NY does NOT, I believe, allow employment decisions to be made on the basis of the applicant's marital status. That existing framework does not exist because marriage is a fundamental right, but for policy reasons of equal employment opportunities, &c. And so the new employment exemption is curious not because of its conflict with 'fundamental human rights', but because it carves out a large sexual orientation-based exception to equal employment policy.

stratagem said...

Well addressed. I have one possible exception: They have made this fundamental "right" something that religious people don't have to ceremonially perform, but it's a lot less clear if they have to "accept" it as marriage, or not, isn't it? If a gay person is employed by the RCC, they probably still have to give their same-sex "spouse" the same benefits they would afford a hetero spouse, wouldn't they?

My other comment would be: Frank is from NY? That explains sooooo many things! :-0

Mark B. Hanson said...

Frank,

Just a small hoot, but in your 6:24 answer you used a misspelling: "givernment". If unintentional, still plenty true of the current administration.

Frank Turk said...

Hi Steven - thanks for your note.

I think you are saying what I'm saying regarding the red areas. Maybe it would be better to say that I agree exactly with what you're saying in regard to the red areas, especially as we consider it from an EEOC perspective.

My point isn't trying to draw out all the legal ramifications of the exemptions (and I think there are many more than the ones you and I have listed so far). My point is to say that the one law itself is not internally consistent: it doesn't adhere to its own definitions.

Make sense?

Frank Turk said...

Other than "becuase", "givernment" is my most-frequent typo.

Where is DJP when you need him?

Frank Turk said...

Stratagem:

You talkin' to me?

You talkin' to me?

Well, I'm the only one here.

Steven A Mitchell said...

>My point is to say that the one law itself is not internally consistent: it doesn't adhere to its own definitions.

Eh, sort of. It's not that the red sections are internally inconsistent with the rest of the act — i.e., the red sections are not inconsistent with the green section's declaration of a fundamental human right — but are only inconsistent with existing equal opportunity law. But such external inconsistency is a policy decision anyhow, and is always subject to modification. In other words, rather than an inconsistency, it is intriguing politicking for consensus-building. But what I perceive to be slightly different perspectives on this may be semantic more than anything... I dunno.

Aaron Snell said...

Just when I think Turk is on a slump, he writes this. The point of this letter is monumental and should be THE talking point in the public square right now.

Rachael Starke said...

Perhaps it's because I'm a furriner, but the issue to me seems to be why fundamental rights need licensing at all. Do Americans need a license to be free? A license to pursue happiness? A license to live?

What kinds of activities require licensing in the first place? Things like propelling two thousand pound boxes around the public square, building homes that won't collapse, applying noxious chemicals to anothers' tresses so as to make them pretty colors instead of a scorched birds' nest.

IOW, you need a license for an activity or service that has the potential to do great harm if not done rightly.

Don't know what you're doing? License revoked, regardless of how much you protest that you have a right to it.

DJP said...

Turk - "Where is DJP when you need him?"

Me? Oh, I'm still over at last week's HT, waiting for you respond to the shout-out.

stratagem said...

Frank - you've proven your heritage now. Now I'll fuggedaboudit!

gymbrall said...

To have a state which punishes us with death the first time we lie or commit idolatry would not be a great environment in which to preach the Gospel -- since all the sinners would be dead.

Frank,
This is somewhat off topic, as you point out, and you might be being flippant and focusing less on being accurate in the above quote, but this is a big deal. What's at stake in the quote above is whether the law of God rightly applied creates an environment that is at odds with the preaching of the gospel.

Frank Turk said...

Gymbrall --

Your request confuses me. Is it your view that the best set of laws for America would be the whole Mosaic law, fully enforced to include all the prescribed punishments? It is your view that this form of government is necessary in order that the Gospel may be rightly preached?

I think I don't understnd your question(s). If you could clarify, I'd appreciate it.

gymbrall said...

Frank,
Thanks for the reply. What I'm saying (and I agree with you earlier that this isn't something that can be fully articulated in a few lines) is that the law of God (which is bigger than, but not inconsistent with) the law of Moses (understanding that there are things which were done away with in Christ which separated the Jews and the Gentiles) is what informs any man as to what is right and what is wrong. This is also understanding that those laws which were specifically judicial laws of Israel are not meant to become judicial laws for all nations but that they are still instructive to us in matters of general equity.


So having said all that, what I would say is that the closer a nation's leaders, its fathers and mothers, its masters, and all those beneath their rule came to having their minds informed by God's law, the more productive the environment would be for the preaching of the gospel. (or to say it another way, the gospel would be being preached at each level)

SandMan said...

Frank, you make a good argument in pointing out the inconsistency of the new law in NY.

I think (as your article alludes to) that this inconsistency cannot continue indefinitely. Clearly this was a temporary concession offered to make the law's passage more palatable to its opposition.

Give the court enough time and it will be parsed down... retaining the "fundamental right of all" to marriage, while trampling the rights outlined in the 1st Amendment regarding the limitation of government's role in religious freedoms.

In fact, I'd be willing to bet (if I were inclined to that sort of thing) that some ACLU lawyer is drafting a lawsuit toward that end as I type this.

SandMan said...

Oops, I also meant to say that Rachel's comment was well said, IMHO.

stratagem said...

Mr. Sandman has hit the nail on the head.
We'll all be made less free, so that some can be more free. All done in the name of freedom, of course.

Dave said...

Is it possible that this inconsistency is intentionally included to give the pro- side leverage? So they can challenge the constitutionality of a "compromise" approach, in order to bolster a "no-compromise" approach? Especially in light of the EEOC issue being raised. Such things aren't so blatantly missed, when it comes to these hot-button issues.

Frank Turk said...

When everyone is free, then no one will be.

gymbrall said...

Frank,
I'll try to clarify one other point and see if its useful. When I said you might be being flippant, it was about this line in particular: To have a state which punishes us with death the first time we lie or commit idolatry.

And I meant 2 things by it:
1. That I don't believe the Old Testament law could be construed to allow the civil government to put someone to death for a lie (unless they lied under oath in a case that would cause someone else to get the death penality).
2. I got the sense from your statement that you thought the contemporary application of the general equity of Old Testament judicial law was such that if applied would cause either unwarranted death or constraint upon the populace as to significantly limit the freedom or grace of the gospel.

Anyway, I think of this as a pretty significant topic, and am willing to engage further on this if you think it would be profitable.

Thanks,
Charles Churchill

David C. Miller said...

Rachael Starke, you asked:

"Perhaps it's because I'm a furriner, but the issue to me seems to be why fundamental rights need licensing at all. Do Americans need a license to be free? A license to pursue happiness? A license to live?"

I live in America (the country that invented freedom) so I'll condescendingly explain it to you before driving off in my SUV to get some fireworks.

There are all sorts of legal benefits to being married- you file a joint tax return, you're automatically given the power of attorney in case your spouse is incapacitated, you have custody over the kids, you have visitation hours in the hospital, your spouse is eligible to be covered by your health insurance, and on and on.

Why, in the state I live in, a fishing license is $20 for a single person, and $30 for a married couple.

So these legal benefits exist. But why?

Well, if you were cynical and single like me, you might say that it's a case of regulatory capture- married people as a special interest group are a HUGE segment of the population and so they vote for people who will make special rules just for married people. I especially think this is the case in the fishing license example.

Here's another theory: those legal benefits exist because it is in the state's interest to encourage stable marriages. Whereas scientific research suggests that children benefit when they are raised by both of their biological parents, therefore we should somehow subsidize marriage. Think of it as being analogous to how the state subsidizes bus systems- we want more buses because it reduces congestion and pollution, so the state chips in $0.25 per fare. Except instead of paying people in money, we pay them in legal benefits.

A third suggestion as to why we have legal benefits tied to marriages: it gives us a very pragmatic way to design what the default action should be in an unexpected legal situation that comes up. In the event of an unexpected death of a spouse, who says who should get what part of the inheritance? If there were no legally recognized spouse, things would get murky pretty quickly. What if multiple people claimed they were married to a man and said that the other woman was the mistress? Having a legally recognized marriage answers those questions easily.

Frank Turk said...

Charles --

I suspect you would not make a distinction between the Theocracy of Israel and the merely-ordained governments of every other nation. What say you?

Frank Turk said...

Hi David C. Miller:

I generate huge tax benefits from belonging to a church. I do not need a license to belong to my church.

What was your point again?

Rachael Starke said...

Well, aside from the fishing license example (which I'd argue is just volume pricing), all the cases you've described are simply about contractually-binding obligations and accompanying benefits. Admittedly, that's precisely how the majority of the world, and sadly, the church, has come to see and thus define marriage. But that's not how God defines it. Our rights are defined by our identity as being made in God's image (not the Constitution, just for the record). Marriage is ultimately and objectively (by God's definition, not man's) an expression of a part of that identity, not a contract.

And because of that, I have zero issue with someone being able to grant the rights to the things you mention to someone other than a genetic relative. I have every issue with someone saying that that's marriage, because that's not what God says it is.

David C. Miller said...

My point is this: I don't think that it's possible, much less desirable, for the government to regulate marriage as anything other than an enforceable contract. It can't force husbands to love their wives as Christ loved the church. But it can grant them power of attorney.

Frank, a while back you wrote:

***
I think – and historically the church thinks -- that marriage is not the social construction of a network of rights – especially the “right” to some emotive or financial state of being appeased. In fact, the church (since it has come up) reads the Bible to mean that marriage is a surrendering of rights first to God and then to another person for manifold theological purposes – that is, a wide variety of purposes which, when acted out, give glory to God.
***

That's a clear definition of what marriage is. But how can the government support or recognize such a definition? Will it send out yearly questionnaires to couples asking them to grade the other on how well they've been fulfilling their role as a wife, husband, mother, or father? Will it give tax breaks for especially pious couples?

I'm not just trying to build strawmen. I'm wondering what a policy would look like that supports a Christian definition of marriage, and if we give the government the ability to enforce such a policy, what's to keep the state from using our logic against us to enforce policies that we don't like?

Frank Turk said...

David:

There is one way for the government to support marriage: leave it to the people who invented it. In the same way the government ought not to enforce the Lord's table, or baptism, they ought not to enforce or pretend to define it. They should say -- as they would, for example, in the case of human life -- that the proper non-governmental authority defines marriage, and the version they might offer is a pale copy.

That really settles it.

Sir Aaron said...

Those are logically-distinct questions. I believe that we have committed an error in turning marriage over to government. That isn't biblical. The only place in the Bible where government is given a role in marriage is in Ruth 4:9, in which Boaz INFORMS the town elders of his marriage contract with Ruth. Note that he doesn't ask their permission; he informs them of a contract already executed. I suggest, therefore, that the only legitimate role for government is to guarantee that there is no force or fraud in a marriage contract. That eliminates the whole political issue.

So let me get this straight. God tells Israel to punish all sexual contact outside of marriage between a man and a woman (or several women) up to and including death and you interpret this as government not being involved in marriage?

Chris H said...

Then it's settled!

Now I'm putting my troll-food satchel safely under my chair; it is late, and my willpower was weak.

CR said...

New York, "defining" marriage as a fundamental right was not new and innovative. The US Supreme Court in Loving v. Virginia in 1967 already recognized marriage as a fundamental right.

On the question of, is the government being inconsistent by stipulating that religious organizations are not required to perform certain marriages? I don't think so. A Roman Catholic straight couple going into an evangelical church and being denied a marriage ceremony by that evangelical church is not a violation of that couple's fundamental right, but a free exercise of religion by that evangelical church.

And while the state or government will never be the church, and the church, the state, both are under God, created by God. Neither the church or the state are human inventions. God invented government because of sin. And this leads to why the government must statutorily define marriage. John Piper said that the legal significance of marriage makes a statutory definition necessary.

There is no one better equipped to inform the state of the definition of marriage than the church herself, through the Scriptures and that definition is: one man and one woman.

Frank Turk said...

Sir Aaron:

I think you should re-read my answer, and consider 2 things:

1. by no means does a government establish marriage in the places you have referenced. The definition of marriage is prior to the government.

2. the government in question is categorically unlike the government we have.

Frank Turk said...

The following has been mentioned to me elsewhere:

The US Supreme Court in Loving v. Virginia in 1967 already recognized marriage as a fundamental right.

This statement may be factually and historically true. However, one thing categorically missed by those who have this information is that the NY Court of Appeals has ruled, in 2006, in Hernandez v. Robles , that Loving has no bearing on this question.

Hernandez v. Robles

[QUOTE]

In sum, there are rational grounds on which the Legislature could choose to restrict marriage to couples of opposite sex. Plaintiffs have not persuaded us that this long-accepted restriction is a wholly irrational one, based solely on ignorance and prejudice against homosexuals. This is the question on which these cases turn. If we were convinced that the restriction plaintiffs attack were founded on nothing but prejudice—if we agreed with plaintiffs that it is comparable to the restriction in Loving v Virginia (388 US 1 [1967]), a prohibition on interracial{**7 NY3d at 361} marriage that was plainly "designed to maintain White Supremacy" (id. at 11)—we would hold it invalid, no matter how long its history. As the dissent points out, a long and shameful history of racism lay behind the kind of statute invalidated in Loving.

But the historical background of Loving is different from the history underlying this case. Racism has been recognized for centuries—at first by a few people, and later by many more—as a revolting moral evil. This country fought a civil war to eliminate racism's worst manifestation, slavery, and passed three constitutional amendments to eliminate that curse and its vestiges. Loving was part of the civil rights revolution of the 1950's and 1960's, the triumph of a cause for which many heroes and many ordinary people had struggled since our nation began. [*5]

It is true that there has been serious injustice in the treatment of homosexuals also, a wrong that has been widely recognized only in the relatively recent past, and one our Legislature tried to address when it enacted the Sexual Orientation Non-Discrimination Act four years ago (L 2002, ch 2). But the traditional definition of marriage is not merely a by-product of historical injustice. Its history is of a different kind.

The idea that same-sex marriage is even possible is a relatively new one. Until a few decades ago, it was an accepted truth for almost everyone who ever lived, in any society in which marriage existed, that there could be marriages only between participants of different sex. A court should not lightly conclude that everyone who held this belief was irrational, ignorant or bigoted. We do not so conclude.
[/QUOTE]

So here's the thing: if the appeals court of NY has plainly and without any shame said that the definitions in Loving do not apply, the claim that Cuomo et al. have "only" lifted their definition of Loving doesn't make the use of the phrase better: it makes it worse.

If this is the case, and this is Loving's language for the definition of marriage, not only has the law equivocated against the meaning of "fundamental right," but it has explicitly denied the court's definition of what it means to hold this particular activity as a fundamental right.

SandMan said...

That last comment rivals the original post in profundity, Frank. Well-done, sir.

gymbrall said...

Frank,
I think there are a lot of distinctions. It also depends on whether you would call the reign of Solomon a Theocracy (or the reign of King Ahab, for that matter).

What I would argue is not distinct is the standard for what is equitable. When a culture considers murder, what should inform their mind as to the seriousness and the penalty of it? The same goes for adultery, theft, and so on.

When we suggest that the application of judicial law in concordance with the law of God is no longer equitable, we suggest that the cross and the gospel removed the law as the standard of righteousness.

Frank Turk said...

Who suggetsed what you said one might suggest?

CR said...

@Frank - I don't think anything you've said changes the fact your argument that NY is being inconsistent is not a strong argument.

The strongest argument against what NY has done is not that somehow it wants to have it both ways. The strongest argument against what NY has done is that it has wrongly defined marriage.

On the former, I gave my example. If we are to accept the SCOTUS and NY premise that marriage is a fundamental right, to use my example again, suppose a Roman Catholic straight couple goes into a evangelical church and wants to get married. That church says no because they believe in only marrying Christians and the state doesn't force that church to marry a Roman Catholic couple. The state is not trying to have it both ways. It indeed is recognizing the enumerated right that people have the freedom to exercise their own religion.

Similarly, if NY wants to extend the definition of marriage to so-called gay marriage but is not forcing churches to so-called marry gay couples, it is not wanting to have it both ways. In wrongly extended marriage to gay couples, it is still recognizing the enumerated right of the free exercise of religion.

I just don't see your argument as a particularly strong argument.

gymbrall said...

Frank,
In Christendom - many, many people. In the exchange between you and I, quite possibly, no one. But I wasn't sure.

Hey, I've wanted to have a conversation like this with you for several years now, and I've wondered, based on isolated comments that you have made, where you fall on the position of the Old Testament law and how we apply it to our lives, our understanding of culture, and what culture should be.

I know that for years, I believed that the equity of the Old Testament was cruel and barbaric and believed that the death of Christ somehow made immoral certain things that had once been lawful (like the concept of slavery, for instance - not to be confused with slavery based on skin color)

Anyway, I appreciate the fact that you took time to interact with me. If you think there is anything here worth fighting out, I'm willing. I think it matters quite a bit.

Charles

Frank Turk said...

CR --

You never think anyone's counter-argument to your own is a strong argument.

As you were.

Frank Turk said...

Gymbrall --

Who in this thread suggested what you say someone suggested? I'm trying to find out the relevence of your comment here.

Charles Churchill said...

Frank,
When I read this comment by you:There is going to be a disconnect between what the secular state will settle for and what God's moral law requires -- and even though I can't flesh this out today due to time, that's probably as it should be. To have a state which punishes us with death the first time we lie or commit idolatry would not be a great environment in which to preach the Gospel -- since all the sinners would be dead.

I thought you might be suggesting that the moral law of God should not be enforced by secular (or maybe contemporary?) civil authorities. Based on your last two comments, that sounds like it is not the case. (Am I reading that wrong?)

That's been the point and relevance of my comments, which I admitted from the beginning were potentially off-topic.

I'm not trying to be confusing or irrelevant and I'm not trying to dodge your questions.

Thanks,
Charles

Sir Aaron said...

@Frank: My post was a response to Chris Cole (whose 5:49AM post I quoted). It was not directed towards you or your post.

However, I do want to quibble a bit with your response to me. Marriage pre-dated government, I agree with you. But so did the requirement not to murder. For someone to say that no government in the Bible enforced marriage is silly. By outlawing all sexual contact outside of marriage including homosexuality, incest, etc., there was a defacto government involvement in marriage. That involvement was to limit it to being between elgible males and females. Everything else was punished.

As to whether American government should enforce marriage is a point we can dispute, but that wasn't the point of your post nor the point of my response to Chris Cole.

M.G. said...

The worst inconsistency of all? The government tells me that freedom of speech is a fundamental right, but then refuses to shut down this blog because they monitor all comments!

Shameless!

Frank Turk said...

Charles --

The plain point of fact is that the government cannot and should not enforce all of the Mosaic law. The day you would say that the government must enforce the sabbath (not merely with "blue laws" but with the punishment prescribed in Ex 31:14) is the day you can credibly make your point.

There are three things at least that we have to consider when thinking about this:

1. No other government in all history is like the government established by God at Sinai -- except the final government of King Jesus. The Law God gave Israel was not for all nations, but for Israel.

2. The Bible is clear that God does ordain all governments -- even ones we would consider barbarous. However, Paul in Romans makes it clear that even Rome which had a system of law and punished evil men which was never established on the Mosaic law was a government doing justice.

3. The most significant difference between these other governments and Israel is that all other governments are explicitly governments over believers and non-believers. To that end, there are issues of piety and faithfulness which we cannot hope to have the secular government enforce -- and which we should see as obtainable only through the consequences of evangelism and the spread of the Gospel.

We should not expect the Law to do what only the Gospel can do. That doesn't mean that the government has no responsibility to create or enforce laws against murder, theft, etc. It does mean, however, that we can't expect the government to always do what the Bible says to do in all matters.

Now, that said, someone brought up the question of murder. As I understand their argument, it goes like this: "Frank - so you're saying that because government didn't define marriage it can't do anything about enforcing marriage. Well: test that against murder. Government didn't define murder, but it enforces laws relating to murder and you don't go writing open letters to the officials doing so. That's a major flaw in your argument."

I don't know if that is actually a flaw in that reasoning -- but that reasoning is not my reasoning. My reasoning is this, using murder as the example:
[more]

Frank Turk said...

[con't]

1. Murder is not defined by government: murder is a pre-existing definition in either moral/ethical philosophy (secular) or in religious traditions (holy), and reflects what Rom 1-2 tells us is evident to every man about what is true in the universe. (We would say, "what is true about God's decrees.")

2. The reasoning to adopt a secular law against murder is utterly dependent on adopting the pre-exiting definition of murder. Government is not tasked with defining a new moral philosophy to enact any statute against murder.

3. When Government seeks to invent a new moral philosophy to then create laws, it has overstepped its role. So for example, if Government wants to redefine "murder" as "the violent death of any animal, human or non-human," it has overstepped its role in the operation of things. Does that definition exist? Sure it does. Is it the one which actually reflects the way things exist in the world? Meh. Anyone who would tell you "yes" is probably not that concerned with justice but some emotionally-charged view of animal life.

Now: apply this to marriage. Does the government have any stake at all in marriage? Sure it does. I think it is utterly evident that government has a stake in making sure society is stable, children (a topic for another day here -- a topic which frankly further-ruins the same-sex argument in an utterly-unexpected way) are cared for and raised as humans and not chattel, micro-economics are self-sustaining, and frankly people are committed to objectives that keep them productive.

But here's the thing: the institution that does all this wasn't invented by government. The institution which does all this pre-existed government, and government, finding it, said, "this is a good idea which we can support and protect."

In that scenario, government redefining marriage is a monstrously-bad idea. Government didn't invent the thing, and is a serial offender at breaking things like marriage when it attempts to reinvent them.

So the question here is not whether government has any stake in the success of marriage: it is whether or not government has a right to reinvent it when some people think it's not well-defined.

Post script: if we think this is the first time government has done this, think again. Government started redefining marriage when it implemented lax divorce laws in compliance with liberal religious outcries to do so. That's the root cause of this discussion now -- not some other secular attack on religious institutions.
-30-

Frank Turk said...

M.G. -

I'm going to assume you're kidding and have a laugh at what you just said.

CR said...

@Frank - I agree with most of your last comment.

While I agree that it is a bad idea for the government to "redefine" marriage (i.e. define it differently than how God has define it, i.e., what God has joined, let no man separate, one man and one woman), because we live in a sinful world (divorce, kidnapping, child abuse, etc.), and because of the legal significance and implications of marriage (inheritance laws, taxes), the state must statutorily define marriage.

The state has also had to statutorily define murder (and different degrees of murder), again, because of sin. "Assistance" suicide, 1st or 2nd degree murder. The US banned partial birth abortions - albeit, it's not considered murder, I think. And now doctors have found ways to inject the fetus with lethal drugs, murdering him or her and then removing the dead fetus (which is not illegal).

So, while the state should not be redefining murder and marriage, the fact is, it is. Thus, the church (i.e., Christians) needs to be involved in educating the state and needs to be involved in statutorily defining things like marriage.

Frank Turk said...

I find it bizarre that, in the case of murder, you don't see abortion as an explicit redefinition of the issue by government, and therefore a perfect example of why they shouldn't be involved in updating moral definitions.

CR said...

I don't follow you.

We live in a constitutional republic where we make laws. Non-Christians, because they are haters of God and lovers of self are already redefining things - murder (via abortion), marriage into so-called gay marriage. All I'm saying is that since the culture has already started to redefine moral concepts, who better than the church, to inform the state of what those moral concepts are. Given that we live in a constitutional republic, why would we not be involved in statutorily defining things like marriage since it is already be redefined by others?