Thursday, December 09, 2004

Response to Marriage Decision

Here is the result of the Supreme Court of Canada’s unanimous nineteen-page decision on the Federal Marriage Reference.

1) Federal Legislation Seeking Court Blessing of Same Sex Marriage Succeeds.
2) Religious Rights to Refuse to Perform Same-sex Marriages Protected as is Refusal to Allow Same-sex Marriages on “sacred places.” Court states that Provinces must ensure these rights are protected as well in Human Rights legislation;
3) Court Refuses to Answer Whether Heterosexual Marriage Only Could be Constitutional.
4) Court, therefore, does not say whether or not Heterosexual only marriage law could be constitutional - - Court hasn’t decided the point.

Conclusion: Federal Government refuses to appeal Appeal Court decisions. Same sex couples obtain marriage licences. Court then says that obtaining marriage licences creates a “right” that cannot be rolled back without causing confusion. Supreme Court doesn’t answer whether heterosexual only marriage law could pass constitutional test because the Federal Government has said it will pass legislation no matter what the Court says.

The only conclusion from this history and the Court’s Reasons is that the Government has played fast and loose with legal procedure to ensure that same sex marriage occurs in Canada. The Supreme Court of Canada has played into the careful game of “lets avoid the analysis” and in a very brief decision almost totally focused on secondary issues (not a single mention is made of children at all for example) and not on law, evidence or serious analysis, grants same-sex marriage.

It is clear from the decision that the Government is not required to mandate same-sex only marriage. It could bring in a civil registration model that is not “same sex marriage” if it wishes (but it did not ask the Court this question).

The Government could also, if it raises the point, which it has not yet done, bring in a heterosexual only marriage law and have that tested by the Supreme Court of Canada. What the Government, based on its past record, however, will likely do is say that it is simply responding to what the Court said should be done.

Result: “Civil unions” that are not marriages and that do not recognize “same sex marriage” (because they will not focus on marriage at all) have not yet been tried in Canada, have not been put to the Supreme Court of Canada and could still be brought forward in Parliament.

Iain Benson ©

Wednesday, December 08, 2004

How the Marriage Challenge Developed

Changes in Society Depend on Other Changes First:

Most changes in society happen because something else changed first clearing the way for later changes. Thus, to give a recent example, movements for changed divorce laws happened because the widely held views about the nature of marriage and procreation had already begun to change. Changes since have, in part, depended for their arguments upon the earlier shifts already being in place.

Once divorce laws were loosened up permitting more ready access to divorce and the legalization of contraception permitted increasing separation between human sexuality and procreation, society having accepted marriage itself began to change.

Whereas, originally, childlessness was an aspect of a few marriages and usually not by choice of the couples, children came to be seen more and more as a chosen (therefore optional) product of marriage not a natural or even a necessary aspect of marriage. One could always be married “without children” but such a state was generally seen as deficient or lacking in key ways and all marriages commenced by asking God to bless the marriage with offspring.

With children rendered optional, other changes would soon follow. Promises that the marriage be “until death do us part” - - always a part of the religious conceptions of marriage - - went by the wayside. Religious groups, for the most part, came to accept the broader social availability of divorce as well as contraception that emptied marriage of two of its historically most central concepts. The language of marriage also changed and came to be applied in ways that showed the loss of the core conceptions of marriage: this is seen clearly in how the term “common law” changed in relation to marriage.

The term “common law marriage” historically refers to forms of marriage which were valid under canon law in the middle ages, and were commonly thought, until the decision in R v. Millis (1843) 8 ER 844, to have been co-opted into the common law of England around about the 14th c.

Canon law recognized the marriage “per verba de praesenti”, the exchange of vows between the individuals themselves; and the marriage “per verba de futuro subsequente copula”, a mutual promise to marry if the parties subsequently had intercourse on the strength of that promise.

The role of a priest in the marriage ceremony was merely to solemnize the contract. The absence of a priest did not invalidate a marriage, as the party’s agreement had been witnessed by God; the presence of the priest merely served, at canon law, as evidence that the agreement had in fact taken place. In order for a marriage to be valid, the parties also had to have capacity to agree; capacity to marry (male and female, not already married, not within prohibited degrees of consanguinity etc.), and had to hold out their married status openly.

Such forms of marriage ceased to have any validity when marriages first came to be regulated by Parliament in the early 19th c. Still, however, the religious and the State conceptions were the same or sufficiently similar that there was a more or less seamless inter-relationship between religions and the State here.

What then happened to marriage in the 20th Century was that the idea of “common-law marriage” containing the intentionality of permanence and fidelity, previously consistent with religious understandings was turned on its head.

Soon, the benefits (and responsibilities) previously attached only to marriage came to be attached to those who lived together for a sufficient number of years in a “marriage like” relationship. With the numbers of people (the 1960’s had done their work in “liberalizing” attitudes) entering into these relationships, arguments for financial protection and fairness on breakdown etc. seemed to call for legislative responses.

As Joni Mitchell put it in one of her songs: “we don’t need a piece of paper from the City Hall, keeping us tried and true….” Soon, the State had to invent a mechanism to keep such non-married people “tried and true” at least financially and it came up with what was confusingly called “common-law marriage” which resembled intentional marriage as falling off a bridge resembled diving off one. Both ended up with legal responsibilities but since those who simply “shacked up” usually never intended to be in it for the long-run, the State had to do something to govern the results of such failed relationships and the children that were often the products of such “de facto unions.”

Religious groups, at the time that State recognition of de facto unions were first put forward in the 1970’s, opposed such recognitions particularly as “marriage like” saying they would threaten (or further weaken) marriage itself. They failed to convince the legislators.

The better term for these “living together but not married” relationships ought to have been “de facto unions” which is what they are – they are not intentional marriages so the distinction should have been clearly made. But the 1970’s’ were not the highlight of human clarity of thought.

The new State-created category that everyone came to call "common law marriage” confused the meanings in the area of marriage because it applied "marriage" to the relationship between two people who had chosen not to be involved as married people at all (otherwise they would have got married). Thus the unintentional non-marriage was deemed to have been an intentional marriage.

Recently, marriage between two people of the same sex, claimants for the most part still clinging, for the time being at least, to the ideas of “couple-ness” took the concept of marriage beyond “male and female” as the marital unit and in so doing actually threw out the link with procreation being necessarily an aspect of marriage at all. Of course, adoption of children by same-sex couples had been dealt with ahead of time so that “parenting” could not be used as an argument against lesbians and gays being parents within a same-sex marriage. But note an important difference here.

No two lesbians and no two homosexuals can ever have a child, in the current state of science anyway, without recourse to sperm or eggs from outside the relationship. We had been prepared for this socially, however, years ago by movements within law and science - - usually at the behest of feminists within the law, to create “sperm and gamete banks” that would make these “products” accessible to those who wanted them – primarily lesbians seeking good quality sperm so that they could have “their own” children. I know of a law professor who had a child with her lesbian partner by artificial insemination. When asked what would happen if amniocentesis showed a male child the woman responded that she would have the child aborted as she only wanted a girl.

The logic of moving beyond “couple-ness” however will eventually stretch marriage itself beyond two or, as in the Netherlands, smaller than two where, for example, a single person has claimed that being excluded from the category of marriage means her own love of herself is not being given equal recognition to that of couples. The licence was, apparently, granted. If one can “marry” two men or two women why not two groups of men or women or any combination that such groups want? Group marriage certainly has as much claim to be socially recognized as same-sex marriage does, having been just as seriously excluded and stereotypically treated (as the argument goes).

In fact, on the Island off Canada’s West Coast where we lived for many years, we recently heard of the new category of “polyamory” (which is now a movement arguing just the kind of arguments tried out so successfully by same-sex advocates - -go look at the website and see) in which, so the argument runs, a group of people enter into “a committed relationship” where they all have sexual relationships with one another. How long, one wonders, before such an extended “couple” seeks legal recognition? Trendy ethicists such as Princeton’s Peter Singer are already saying that this (and, in fact, bestiality) are AOK. As the same-sex advocates once put it, “who are you to deny their love?” Who indeed?

Each development was foreshadowed by others and the “logic” of marriage as restricted to male and female, primarily or essentially related to the creation, care and nurturing of children, gave way to one where human procreation itself became something capable of complete separation from human coupling and human coupling itself separated from biology and nature.

The feminist slogan that “biology is not destiny” became part of the unhinging of biology (and science generally) from meaningful conceptions of destiny - - increasingly what calls itself “ethics” in science (including medicine) is an ever more vague attempt to distil meaningful concepts that will permit the latest developments while giving comfort that all is well and the ethics are in hand. This kind of stabbing ahead into the dark with the white cane of pseudo ethics is an act of social blindness all too common amongst the new breed of scientists.

The Recent Report of the U.S. President’s Council on Bioethics, entitled Beyond Therapy is just such an example of attempting to give comfort where none is really due. That the Council involves leading Christian (Protestant and Catholic) and Jewish scholars such as Mary Ann Glendon, Robert George and Leon Kass is a cause for serious concern as it indicates the extent to which even the top thinkers of the day can be co-opted in the direction of false comfort. The new approaches to ethics need to be identified as false, not play along with the illusion that things are, in fact, in hand.

They are out of hand. The new approaches have been around for awhile as evidenced by the ease with which medicine, for example, came to treat normal pregnancy as something needing medical intervention for the purposes of “termination” of developing human beings.

The new approach is fully visible in all sorts of contemporary technologies that have built upon the abandonments signified by abortion, and euthanasia. Dr. Gerry Hall, the doctor who performed the first human cloning experiment, described the new approach rather clearly some years ago in an interview he gave on the Canadian Broadcasting Corporation radio program “Quirks and Quarks” when he said: “I did the experiment to stimulate ethical discussion and raise the ethical issue…I do the science and leave the ethics to others to worry about” (October 30, 1993). Exactly.

As destiny came to be subjectively defined, law came to be the means of making the subjective will socially powerful in an age when religions no longer formed the dominant moral conceptions of the age. Without a widely shared religiously informed conception of destiny, the modern age plunges ahead blindly with ideology and commercial interest barely reigned in by markers of a previous age hastily erected as temporary brakes in the mad rush ahead.

Marriage is now, as far as the general State definitions go, deconstructed. It now means, like the Queen says in Lewis Carroll’s famous story “whatever I say it shall mean.” As this is being written we do not know what the Supreme Court of Canada will say in the Marriage Reference but it is fairly certain that the Court will, somehow, find a right to “same-sex marriage” in the Charter of Rights and Freedoms.

To what extent religious communities will be able to refuse to marry same-sex people or to support such marriages (by refusal to rent facilities etc.) remains to be seen. What is clear is that the courts are just part of the process of making human reproduction irrelevant to human bonding and thereby the law sets itself against the deepest waters upon which it has floated for so long.

Iain T. Benson ©

Friday, December 03, 2004

"Compassion" for Children: Dutch Style

The Globe and Mail recently (December 1, 2004) hosted a poll with the following question:

In your opinion, is the Netherlands on the right track in allowing medical teams and parents to jointly decide to end the lives of terminally ill newborns?

This question was answered with 75% of responders saying “yes” and only 25% saying “no.” Well, that means, I suppose, that we are heading towards a society in Canada in which our care and compassion means we shall now kill terminally ill newborns. What compassion!

Good old Holland, leading the way in yet another area of modern social practice! They have shown great leadership already in the killing of the old as well as in liberalized pornography, prostitution and public drug consumption - - just ask anyone who has witnessed, as I have, the shooting up of heroin right in the main park in the Centre of Amsterdam.

The Canadians who answered the poll question above were answering whether the Netherlands was “on the right track”. Curious phrase that – “right track”.

Where exactly is that track going and why is the image of a “track” and a “direction” being used? What could be beyond “terminally ill newborns” for example? Is there, perhaps, another category waiting in the wings for the liberation from life that so many physicians in the nether-regions are practiced at?

Yes, as a matter of fact, the Dutch have, for some time, been perfecting their regime of killing those whose lives are judged by others not to be worth living. Years ago there was quite a stink when their own Attorney General’s Report showed over a 1,000 non-voluntary deaths (i.e. not requested) a year by active physician termination.

So shocking was the Dutch evidence in fact that several other countries examining the situation there (such as the British House of Lords Select Committee) pronounced it completely unacceptable and rejected what was going on and the so-called “safeguards” within which the Dutch system was said to operate.

But now time has passed, memories have faded and the Dutch practices have passed from prosecutorial guidelines (which simply said “we won’t prosecute if you follow these guidelines”) to enacted laws (saying “killing is legal”). First the old and terminally sick were allowed to be killed, then those who showed “no cure” or “no improvement” and who just wanted to die. This elevation of will to the level of illness has been held to include the depressed and those with conditions such as anorexia.

The so-called “safeguards” are not “safeguards” at all as experts such as Georgetown’s John Keown have shown in their own studies of the Dutch Euthanasia regime.

So, the track that awaits societies that follow the Dutch goes in the direction of getting rid of “useless lives” and we have heard that rhetoric and don’t need an exhaustive web-search to tell us who used that word - - how ironic that the Dutch who ate tulip bulbs to survive the long winter of Nazi horrors are now willing to deliberately terminate human newborns using the “ethics” first formulated by the Germans who proceeded the Third Reich.

The Dutch will terminate old people who are judged to be “past it”. No wonder they have, apparently, one of the highest rates of gangrenous infections in Europe - - old people are afraid to go for treatment lest they be bumped off. Holland is well known, as well, as having the worst hospice care availability in Europe - - you don’t need hospices to lovingly care for the dying when you can simply (and much more quickly) knock them off.

An aspect of all this is that the Dutch lie about what is going on. Several times I have had knowledgeable people from Holland deny to my face that non-voluntary euthanasia occurs in their country - - when even their own Attorney General’s Report said so clearly in the early 1990’s. It was a wise man that once said, “hypocrisy is the homage that vice pays to virtue”.

The Dutch seem to have gone one step further. For them “lies are the homage that evil pays to goodness”.

Iain T. Benson ©

Wednesday, December 01, 2004

Atheistic Humanists and Destruction

I am in the process of reading an extraordinary book right now. By John Gray, the English Philosopher, it is entitled “Straw Dogs” (London: Granta, 2003). It is about many things but as far as I can work out the central theme (the book will take several readings), it is that Humanism took its belief in progress from Christianity and that with the debunking of Christianity, Humanism has no grounds except arrogance, for maintaining that humans can improve the world at all. Humans are just like any other animals adrift in a purposeless sea of chance.

In the course of this book, about which I hope to write more in the future, Gray derides man’s nature and conduct and gives examples of humankind’s destruction of nature and other humans. He uses as an example of the actions of what he cleverly (I don’t know if he invented the term actually) calls Homo rapienes - - raping man, the destruction of so many natural species and so much ruination of nature (rain forests etc.).

The Humanist’s hopes that science and global capitalism can provide answers to the problems of life on planet earth are, to Gray, a complete and dangerous delusion.

Gray, however, has said that it was one of Christianity’s erroneous concepts to suggest that there was purpose to life at all or that humans are any different from any other animals. We are, and he frequently cites Darwin, simply afloat in a sea of developing genes. Human life that thinks it can make a change is simply deluded and arrogant - - what humankind touches it defiles.

Gray’s view is pessimistic in the extreme and his book will cause alarm in many circles - - particularly amongst the Humanists at whom he takes particular aim. What I want to comment on here is something else - - something that slips into his commentary without comment and that, I think, needs further consideration.

Gray makes the claim that the destruction of nature is “hideous” and “a nightmare” but one must ask, if the Universe is purposeless and simply adrift within the boundaries of meaninglessness and chance: “why the negativity?” What is so “bad” about destruction after all - - it is only natural isn’t it?

Seeing destruction of creation (note the purpose implied in the very term creation - - which is why it is a term Gray does not use) as “bad” suggests that things are, somehow, “good” but if they are “good” how can this have any meaning within the realm of purposelessness?

It has been fashionable in recent years for people, often Christians or at least those who believe in some kind of God, to write provoking essays and books about “whether we can be good without God?”

These books and essays also miss the point. Of course we can be good (meaning in terms of certain actions) without believing in God. Belief in God doesn’t necessarily produce good actions just as failure to believe in God doesn’t necessarily produce bad actions. The question is much more subtle than people often suggest.

The question really ought to be “Can we Care about Good if There is no Purpose and Can there be any Purpose without God (as in an Order and Purpose to the Universe)?” A very different take on the subject. It is too easy to answer the question “Can we be good without God?” by speaking to its ambiguity. For we all know “good people” who do not believe in God and act for motives of altruism and so on that they do not attribute to a Divine source.

However, if we ask them why they care or why anyone should care about anything if there is no purpose to life, then we get at the heart of the matter - - the heart that so many writers, scientists (especially scientists) and citizens today ignore.

If we care about anything, including the environment, and believe others should too, then we do not believe in a purposeless universe. If the universe has purpose then it does not emerge from nor depend upon blind chance. Clearly human beings cannot create matter, they are themselves created matter who do not depend on their own volition to keep going moment by moment. So, if all of matter (the Universe) is kept in being by forces beyond ourselves and if the whole thing is tending in a purposed direction then that “beyond ourselves Ordering Principle” (call it God if you want for shorthand) is the only logical reason to care about anything at all.

The choice is between the two belief systems
1) Purposelessness, lack of design, chance development towards no purposed end,
2) Purposed, designed development with purpose towards an end. There is no third choice available.

The consequences of living out the logical, rather than sentimental, outcomes of one or other of these two views are ours to make in view of what we believe to be true. In the end, it is very important to realize that science cannot prove either hypothesis by definition since science is about “measurement” and you cannot measure from nothing to something anyway. The critical point, however is that we come to a clear understanding of that fact that “caring” belongs to the realm of purpose not of purposeless chance. Chance might have a place within purpose but then chance itself is, in some sense, purposed.

What cannot be sustained is the kind of Humanism that seeks to maintain the religious and especially Christian concept(s) of purposed creation and meaningful development and the “good of nature” against a background of sin and redemption (and therefore purposed history) while denying creation, purpose and redemption.

T.S. Eliot once defined atheism as “living under ether” which always seemed, to me at any rate, to be a bit harsh and not entirely true since it suggested that atheists were completely without perception like patients etherized upon tables.

One thing is clear, however, Gray has administered a wake-up call to contemporary atheistic humanists; whether they choose to wake up and get out of their all too comfy intellectual beds to engage the world he has described for them rather than continuing to stay cozy in a world propped up by half-truths stolen from a prior Christian era they supposedly deny, is another question.

Iain T. Benson ©