- The Washington Times - Wednesday, May 19, 2004

Now that same sex marriage is on its way to a spurious legality, it is time to ask where does it end? If same sex marriage can be defined by the courts as legal, then why not polygamy, pedophilia, child marriage?

Lord Devlin, the eminent British jurist, once wrote that “if men and women try to create a society in which there is no fundamental agreement about good and evil they will fail; if having based it upon a common set of core values, they surrender those values, it will disintegrate. For society is not something that can be kept together physically; it is held by the invisible but fragile bonds of common beliefs and values… . A common morality is part of the bondage of a good society, and that bondage is part of the price of society which mankind must pay… .”

Western society agrees to a common morality — core values — in that it accepts the validity of laws barring polygamy, men seducing young boys, marriage of children, consanguinity marriages, say, between brother and sister, a father marrying his son’s wife, a woman marrying her stepfather. If the concept of marriage can be redefined to establish the validity of a gay or lesbian union, then why frown upon the antics of the North American Man Boy Love Association (NAMBLA)? The age of consent for girls in Canada is 14 years so why not 13, 12, whatever? President Bush was surely reflecting majority public opinion when he declared in words that Devlin would have approved:

“Marriage is a sacred institution between a man and a woman. Today’s decision of the Massachusetts Supreme Judicial Court violates this important principle. I will work with congressional leaders and others to do what is legally necessary to defend the sanctity of marriage.”

In his 1965 book, “The Enforcement of Morals,” Lord Devlin raised three questions:

1. Has society the right to judge matters of morality — in other words, to legislate moral behavior? Or are morals always a matter for private judgment?

2. If society has the right to legislate moral behavior, has it also the right to use the coercion of law to enforce it?

3. If yes, should it use the weapon of law in all cases or in some cases and in accordance with what principles should it employ the weapon of law?

It used to be easy to say that neither government nor society belongs in the bedroom because it was assumed that only adults, straight or gay, were involved. The question today is whether government or society has any rights inside or outside the bedroom. In other words, what or whose standards should we adopt on social issues? Are the Ten Commandments still valid?

The secularization of society has made moral questions all the more pertinent and difficult to deal with. These debates have a religious origin: partial birth abortion, on-line pornography, cloning, AIDS, hate speech, assisted suicide, consecration of gay clergy. If the Massachusetts Supreme Judicial Court can order the state legislature to legalize same sex marriage then why couldn’t the same court at some time in the future order the legalization of polygamy or polyandry? Everyone to his/her taste, no?

A large number of Americans are in favor of same-sex marriage. According to a recent Pew Research Center poll on same-sex marriage, 53 percent of those polled were against and 38 percent in favor. Are moral questions to be decided by runaway judges or opinion poll majorities?

Arnold Beichman, a Hoover Institution research fellow, is a columnist for The Washington Times.

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