In a recent post - Til Death - Georgetown Professor Patrick Deneen points out the questionable foundation of the recent California Supreme Court's In re Marriage Cases decision which presumes to establish a "right" to homosexual marriage. The basis for their decision is individual liberty and personal autonomy.
. . . the constitutionally based right to marry . . . must be understood to encompass the core set of basic substantive legal rights and attributes traditionally associated with marriage that are so integral to an individual's liberty and personal autonomy that they may not be eliminated or abrogated by the Legislature or by the electorate . . . . These core substantive rights include, most fundamentally, the opportunity of an individual to establish - the the person with whom the individual has chosen to share his or her life - an officially recognized and protected family . . . [opinion at p. 6]
Deneen aptly notes, however, that marriage is really more based on the voluntary abrogation of individual liberty and autonomy, in self-sacrifice.*
When we base a "right" of marriage on liberty - and a so-called liberty to choose whatever I like - on what basis do we prohibit any choice, so long as it is freely made? Why not polygamy? Why not child marriage? Yes, child marriage brings up the additional element of competency to choose but with the increasing panoply of rights and freedoms being given children, is it not just a matter of time before they - too - will be seen as at liberty to choose as they will?
Having chosen in "liberty", it is not a great distance to unchoose in "liberty."
Maybe the bigger question is the proper basis for marriage. Is it based in liberty? Or is based on a voluntary servitude - a sacrifice - for the good of the other and the community?
Having been persuaded to discuss the question of homosexual marriage in terms of liberty, I perceive we have greater "liberties" looming. Just waiting in the wings. . . .
Maybe somewhere in Texas, for example.
*He also makes a really interesting point about a Hegelian recognition as legitimacy instead of individual justification, but I will leave that as an aside. . . . Another aside I'd like to point out is the California Court's apparent assumption that marriage - and "right" to marry - is constitutionally based.