Wednesday, July 3, 2013

Sexual Self-Determination Is the New Self-Evident Truth

On this July 4, one truth could not be more evident. Sexual self-determination is fast becoming the most important legal right in the nation. Whether the issue is same-sex marriage or nation-wide health insurance coverage for abortion and contraception, the scales of justice are now tipped in favor of an individual's right to choose with whom to have sex, in what family arrangements, with what contraception, and disposing of any resulting pregnancy however they wish.

This development seems reasonable. What could be more personal or private than sexual choice? But it comes at an expense. Legal niceties aside, what the U.S. Supreme Court did in its recent decisions on the federal Defense of Marriage Act and California's Proposition 8 was to choose between two competing classes of rights -- sexual rights and religious rights. In siding with same-sex marriage and against traditional marriage, the Supreme Court elevated sexual rights to a more important level. This is clear from Justice Kennedy's majority opinion in the Windsor case, where he characterizes the religious and moral arguments behind DOMA as illegitimate and discriminatory.

The new supremacy of sexual freedom is equally clear from the on-going fight over the implementation of the Health and Human Services regulations, which require nearly all health insurance plans to cover abortion and contraception, with limited exceptions. So, on July 2, the U.S. Catholic bishops joined with Southern Baptist, Jewish, and Mormon leaders to call for greater conscience rights protections under the HHS regulations. At stake is whether the government will allow its citizens to act on their religious beliefs in their daily lives. If someone can act a certain way based on sexual preference, why can't someone act a different way based on religious preference?

Whether the majority of Americans agree with the religious view in question shouldn't matter in deciding to grant conscience protection. Why would a religious view need protection from government encroachment unless it was unpopular and disagreeable? As the July 2 joint letter states:
Many of the signatories on this letter do not hold doctrinal objections to the use of contraception. Yet we stand united in protest to this mandate .... Whether or not we agree with the particular conscientious objection is beside the point. HHS continues to deny many Americans the freedom to manifest their beliefs through practice and observance in their daily lives. 
Decades ago, the Supreme Court found a right to abortion in part stemming from the unstated right to privacy existing in the penumbra of the Ninth Amendment. Days ago, the Supreme Court stopped just short of finding a right to same-sex marriage in the penumbra of the Fifth Amendment. But there is no need to search for penumbras when it comes to religious rights. The Constitution states clearly that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." To protect sexual freedom at the expense of religious freedom turns the Constitution on its head.


  1. Justice Kennedy wrote Romer v. Evans, Lawrence v. Texas, and was the key vote on PP v. Casey. Very similar language is in these decisions, so Windsor is nothing surprising.

    Still, his jurisprudence is more libertarian than progressive.

    He has a record of supporting freedom of expression and association over sexual freedom. He was the deciding vote in Boy Scouts of America v. Dale, which allowed the Boy Scouts to ban gay Scoutmasters. He has also voted in favor of the free speech rights of abortion clinic protesters.

    He is generally supportive of religious freedom.

    He did not believe the federal government had the power to enact ANY of Obamacare, including the HHS Mandate and wrote a blistering dissent.

    I think Kennedy sees this as a religious freedom case, and votes to strike it down. I wouldn't be too surprised if all nine saw it that way.

    The big problem is the plurality opinion on Obamacare viewed it as a tax, and the federal government gets far more deference on the tax code than in other areas. If they view the penalty as a tax (and compliance as a tax break), then it will be a difficult case to argue about why people shouldn't be paying taxes because of their religious beliefs.

    1. My tax law professor was fond of saying that the tax code trumps the Constitution. We'll see how it all plays out.

    2. That is, Kennedy will see the HHS Mandate as a religious freedom case, not a sexual freedom case, and will strike it down.

  2. My view is that our society has transition to one of hedonism, and particularly a form that is psychologically/physiologically addictive when you combine the normalization of pornography, natural bonding hormones, and a society of children who have grown up with divorced parents who do not understand the value of healthy and loving relationships.

    I have long viewed the Constitution as a delicate balancing of rights that can only be maintained by good faith efforts, grounded in natural law. But this is not the way our Supreme Court has interpreted the Constitution for at a minimum decades, possibly centuries. With that balance off and no way to truly interpret the constitution in a just manner consistent with natural law, due to the egregious contortions of reason that make up our precedent, I don't see things changing anytime soon. Society must return to moral behavior before policy will be forced to follow.

    I have often wondered, what would prompt that to happen. I have thought back to the Early Church and Constantine the Great and how God guided and built His Church up. He can do that if He wants - no question. But - will He, does He want to do that type of thing again now? I of course do not know.

    I believe a change of circumstances within our country could prompt a significant resurgence in religious belief and moral behavior. If we go through great economic hardship, perhaps if all of the "securities" of our machines and our insurance companies were to fail - or any other circumstances that prevent the luxury of maintaining the illusion of consequence-less immorality. I do not wish hardship on our nation obviously, but I do wish for another "Great Awakening" of sorts. Also if our social welfare state safety net fails, people will have to turn back to their families, they will have to make sacrifices, they wont have time or money to worry about whether they can get their weekly fix of consequence-delayed sexual satisfaction. II say this because the consequences still exist, whether we realize them in this world or the next.) When you do not have much, you realize more clearly how you are blessed and what is really important.

    Currently, those who make our policy have placed sexual liberty over religious liberty. I am not sure if that represents the majority - though I believe they have many people fooled that it does. However, if you asked people to give up birth control, even many people within marriages would be upset - this is what worries me the most.

    1. I agree that society must change in order for policies to change. Supreme Court decisions frequently lag behind societal mores. If current Supreme Court decisions are a sign of underlying seismic shifts that have already occurred, religious liberty could face great difficulty in this country in the future.

    2. Actually, I see hedonism as the symptom of a much larger problem.

      The real problem is sentimentalism. Sentimentalism is the idea that morality is grounded in emotion, not reason. It's the idea that if it "feels right", then it must be right, and if it "feels wrong", then it must be wrong. Because everyone's feelings are different, not offending others becomes the ultimate virtue. Truth is determined by emotional response, not logic and reason. But actual truth may be difficult, while lies pleasant sounding.

      This is the dictatorship of relativism.

      As for this issue sexual liberty "feels right" to most people, because sex feels good. Protesting hedonism without addressing the underlying sentimentalism makes one sound like a killjoy and convinces no one.