Dr. Edwin Vieira, IAI’s Distinguished Senior Fellow in Jurisprudence and Constitutional and Monetary Law, lectures on the nature of currency.
The provocative challenge of Cardinal Walter Kasper highlights one of the Church’s (and the churches’) most spectacular lapses in judgment: the refusal to contest the “abolition of marriage” (in Maggie Gallagher’s phrase) that was effected by “no-fault” divorce.
Yet as currently framed, the debate over Cardinal Kasper’s proposals stunningly misses the point. By casting the debate in terms of admitting divorced and remarried persons to communion, the Church appears determined once again to avoid confronting the central evil of the Divorce Revolution, the evil that still taints the Church, along with the family and civic life, and one no stable civilization can tolerate. This is involuntary divorce and the injustice committed against the forcibly divorced or innocent spouse, along with his or her children.
The Cardinal makes no distinction between a spouse who abandons the marriage, commits adultery, divorces unilaterally without recognized grounds (“no-fault”), or otherwise violates the marriage covenant in legally recognized ways, and a spouse who is the victim of such deeds. To treat the sinner and the sinned against as if they are the same is to deny the very concept of justice and to place the Church and other institutions on the side of injustice.
This willful neglect of justice in adjudicating divorce—not the dissolution of households per se—was the vitiating outrage of “no-fault” divorce. By not challenging the state’s claim that it may dissolve marriages without any consideration for the consequences or injustices inflicted on the forcibly divorced, the Church followed the state into the realm of amorality, a realm suited to the aggrandizement of institutional power but fundamentally antithetical to both the Gospel and a free society.
Since this fateful decision, the oxymoron of “no-fault” justice has been gradually poisoning both our culture and the fundamental institutions of our civilization, starting with the family, passing through the Church, and extending to the state machinery, such as the judiciary. Divorce-without-consequences is exacting a devastating toll on our children, our social order, our economic solvency, and our constitutional rights. It has led directly to explosions in cohabitation, illegitimacy, welfare, and crime and to demands for same-sex marriage.
No public debate preceded this ethical bombshell in the 1970s, and none has taken place since. Legislators “were not responding to widespread public pressure but rather acceding to the well-orchestrated lobbying of a few activists,” writes Bryce Christensen. Critically, these are the same sexual ideologues who have since expanded their campaign into a much broader agenda of sexual radicalism: same-sex marriage, abortion-on-demand, sex education, women in combat, homosexuals in the military, Obamacare, and more. Feminists were drafting no-fault divorce laws in the 1940s, which the National Association of Women Lawyers now describes as “the greatest project NAWL has ever undertaken.”
The result effectively abolished marriage as a legal contract. Today it is not possible to form a binding agreement to create a family.
The new laws did not stop at removing the requirement of citing grounds for a divorce, to allow divorce by mutual consent, as deceptively advertised at the time. Instead they created unilateral and involuntary divorce, so that one spouse may dissolve a marriage without any agreement or fault by the other. Moreover, the spouse who abrogates the marriage contract incurs no liability for the costs or consequences, creating a unique and unprecedented legal anomaly. “In all other areas of contract law those who break a contract are expected to compensate their partner,” writes Robert Whelan of London’s Institute of Economic Affairs, “but under a system of ‘no fault’ divorce, this essential element of contract law is abrogated.”
The result was to unleash precisely the moral and social chaos that it is the role of the family to control, and powerful interests were not slow to capitalize. Legal practitioners immediately began encouraging business by taking the side of the violator. Attorney Steven Varnis points out that “the law generally supports the spouse seeking the divorce, even if that spouse was the wrongdoer.” “No-fault” did not remove fault, therefore; it simply allowed government officials to redefine it however they pleased and to treat legally unimpeachable citizens as malefactors. “According to therapeutic precepts, the fault for marital breakup must be shared, even when one spouse unilaterally seeks a divorce,” observes Barbara Whitehead in The Divorce Culture. “Many husbands and wives who did not seek or want divorce were stunned to learn … that they were equally ‘at fault’ in the dissolution of their marriages.”
The judiciary was expanded from its traditional role of punishing crime or tort to refereeing private family life and punishing personal imperfections. One could now be summoned to court without having committed any legal infraction; the verdict was pre-determined; and one could be punished for things that were not illegal. Lawmakers created an “automatic outcome,” writes Judy Parejko, author of Stolen Vows. “A defendant is automatically found ‘guilty’ of irreconcilable differences and is not allowed a defense.”
Though marriage is a civil matter, the logic quickly extended into the criminal, including a presumption of guilt against the involuntarily divorced spouse (“defendant”). Yet formal due process protections of criminal proceedings did not apply, so forcibly divorced spouses became quasi-criminals not for recognized criminal acts but for failing or refusing to cooperate with the divorce by continuing to claim the protections and prerogatives of family life: living in the common home, possessing the common property, or—most vexing of all—parenting the common children.
Following from this are the horrendous civil liberties violations and flagrant invasions of family and individual privacy that are now routine in family courts. A personalized criminal code is legislated by the judge around the forcibly divorced spouse, controlling their association with their children, movements, and finances. Unauthorized contact with their children can be punished with arrest. Involuntarily divorced parents are arrested for running into their children in public, making unauthorized telephone calls, and sending unauthorized birthday cards.
Cardinal Kasper’s agenda ignores all this and will certainly make it worse. Indeed, what he is demanding is a kind of no-fault church discipline, which will debase the Eucharist and church membership, just as no-fault divorce has already debased marriage and the secular justice system, by allowing clergy to redefine sin and cheapen repentance: “If a divorced and remarried person is truly sorry that he or she failed in the first marriage … can we refuse him or her the sacrament of penance and communion?” But sincere repentance requires an effort to rectify the harm caused by one’s sin. Does the Cardinal’s definition of “truly sorry” entail undertaking to compensate one’s former spouse for being summarily evicted from his or her home, or deprived of his children, or serving jail time for unauthorized parenting or trumped-up accusations of “child abuse” or “domestic violence” that are now routine in divorce proceedings? Does it include compensating one’s children for depriving them of a father throughout their childhood? These are the realities of modern divorce, not the sanitized understanding being presented by the Cardinal.
But perhaps the most explosive question: Why is the Church not willing to sort out the difference, both in its doctrine and in each individual case? Is it because the distinction between justice and injustice—central to the Gospel itself—would force the Church to confront the injustices perpetrated by a state that has dangerously overstepped its authority and the Church’s own failure to act as the society’s conscience on a matter involving its own ministry?
For the Church is simply following the politicians. In contrast with same-sex marriage, abortion, and pornography, politicians and even self-described “pro-family” groups studiously avoid challenging divorce laws. “Opposing gay marriage or gays in the military is for Republicans an easy, juicy, risk-free issue,” Gallagher writes. “The message [is] that at all costs we should keep divorce off the political agenda.” The exception proves the rule. When Pope John Paul II spoke out in January 2002—calling divorce a “festering wound” with “devastating consequences that spread in society like the plague”—he was attacked not only from the left but also by conservatives like Tunku Varadarajan in the Wall Street Journal.
Likewise, this power grab by ideologues and state functionaries at the expense of the family and private sphere of life was met by the churches with silence. Here is a sacrament consecrated by the Church, vowed before God and witnessed by the congregation. The state comes along and simply tears it up, and the Church mounts no serious response.
In the showdown that never took place over sexual morality and the supervision of private family life, this was the moment the two jurisdictions were forced into a direct confrontation and the state simply and decisively told the Church who is boss. From the moment that the Church failed to inform the state that it could not simply countermand God’s covenant governing the family, the Church has been little more than an ornament in marriage and therefore in the lives of most people.
Marriage is today the most critical interface of church and state. Whoso controls marriage governs society, not least because it becomes “the hand that rocks the cradle.”
This rivalry is not apparent in the terms by which marriage is contracted and consecrated. Here church and state cooperate quite effortlessly: a ceremony, a signature.
Where the power struggle ensues is in the terms by which a marriage can be dissolved, and it was the Divorce Revolution that precipitated the battle that the Church refused to fight. The Church, along with its Protestant counterparts, ceded to the state the authority to dissolve marriages at its own pleasure and on its own terms and to erect a regime of governmental micromanagement over the private lives of the contracted parties, innocent as well as guilty—all without scrutiny or objection by these churches who consecrated the supposedly sacred union.
Far from upholding a sacred covenant, the churches, both Catholic and Protestant, are thus parties to a fraudulent contract. They have allowed their marriage ministry to become a bait-and-switch, luring unsuspecting parties into a supposedly binding and lifelong union, where they are then sitting ducks for state functionaries to come along and simply tear up the covenant and seize control over their lives and children. And the state tears up not only the secular contract, but the covenant between the spouses, the congregation, and God. The state’s edict countermands the churches’ covenant and with it the churches’ entire authority. With the churches’ acquiescence, the state’s officials put God in His place.
However impeccable the churches’ doctrine, and whatever verbal lamentations they have expressed over divorce “culture,” what the churches have not done is resist the state’s claim to monopoly control over the terms of divorce and to supervise the private lives of the forcibly divorced: the churches have never raised their voices against the state’s usurpation of power; they have never defended innocent victims of the unilateral divorce injustice or interposed themselves between the state and innocent spouses; they have never challenged state functionaries taking the homes and children of innocent people; they have never gone to court to see that justice is done to the involuntarily divorced; they have never campaigned to change the laws governing divorce or prevent the enactment of more; and they have never even discussed the possibility of threatening to not consecrate marriage covenants until the state stops unilaterally tearing them up.
This is demanding a lot from the churches and all of us. But less existential confrontations with the state faced churchmen like Ambrose and Becket and Fisher, and nothing less is required if the churches expect to withstand the crisis posed not only by figures like Cardinal Kasper but also the larger radical sexual regime: same-sex marriage, abortion-on-demand, sex education, Obamacare, plus the creeping criminalization of parents and others who dissent, including ordinary Christians.
Divorce is where Christians can and must draw a line and launch a vigorous counterattack that will enlist stakeholders from secular society: ordinary citizens who can at last be brought to realize why the Church and God must have a central place in both our public and private lives if we are to have any private lives at all.
Stephen Baskerville is IAI’s Senior Fellow in Political Science and Human Rights. He is Associate Professor of Government at Patrick Henry College and Research Fellow at the Howard Center for Family, Religion, and Society and at the Independent Institute.
This article was originally published on Crisis Magazine.
The opinions published here are those of the writer and are not necessarily endorsed by the Institute.
When language becomes corrupt, mankind is out of touch with reality.In The Fourth Political Theory, Alexander Dugin says some profound things which need to be acknowledged (even by one who opposes his call for the destruction of the United States). “In political post-anthropology,” he writes, “all is reversed: leisure and work (the most serious occupation, actual work, is watching television shows), knowledge and ignorance…. Traditional male and female roles are reversed. Rather than being esteemed and experienced elders, politicians are chosen for their youth, glamour, appearance and inexperience. Victims become the criminals and vice versa….”
Dugin correctly sees that a kind of inversion has been taking place. And this inversion is fundamental. It is a symptom of mass transformation within the soul. Humanity, as it were, has two poles; and these poles are being disrupted, negated, and reversed. As odd as it may seem, when writing about the balance of power between the great bipolar actors (Russia and America), we are now accustomed to a denial of bipolarity which merely promises a reversal of this same polarity. This may have to do with mass neurosis and the denial of death, or it is the result of some black alchemical process.
Last week the U.S. Supreme Court validated gay marriage as a nationwide right. Setting aside the nonsense that passes for debate on both sides of this question, the thing that is most troubling is that marriage is now defined without regard for male and female. According to the most ancient spiritual teachings, gender is a universal principle having to do with regeneration. Only the union of male and female has regenerative significance. Justice Kennedy rejected this idea when he wrote: “In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves.”
But Mr. Justice Kennedy, the fulfillment of marriage is found in children. And as for Mr. Chief Justice Roberts, who argued that the court’s ruling was short-circuiting the democratic process, I am afraid that even a majority vote in favor of gay marriage does not make it possible for men to produce offspring without women. All that such rulings or votes can do is eliminate the previous definition of the word “marriage,” which my grandfather’s 1943 Webster’s International Dictionary defines thus:
marriage, n. 1. State of being married, or being united, to a person or persons of the opposite sex as husband or wife; also, the mutual relation of husband and wife; abstractly, the institution whereby men and women are joined in a special kind of legal dependence, for the purpose of founding and maintaining a family.
As you can see, the Supreme Court has violated the English language; that is, the Court has assumed a power that no government authority may safely assume. It is the most arbitrary power imaginable; for the Supreme Court may now say that “up” is “down,” and “black” is “white.” We cannot tell what such a court will do next; for it is now certain that no property is safe, no contract protected. Anything may happen. We are no longer ruled by laws, for laws are made of words and now, as of this moment, words are made of nothing, having no intrinsic meaning. They are sounds only, with meanings that may be politically assigned or reassigned. For that is what our Supreme Court has done, and in doing so, they have turned all law into gibberish. And this, I maintain, is the most dangerous thing of all. It is not only marriage that has been undermined. It is the state, the Constitution, the English language, and public sanity. This, in fact, is the same practice which shows up in the neutering of our military power and our economic power. It is a symptom of inner dissolution, a collapse of instinct, and a descent into anarchy. What I have been writing these many years has never been primarily about the threat from Russia or China. My writings have been about the progressive falsification of reality, national self-deception and the corruption which attends our social decline. I merely picked the most clearly suicidal elements in our national self-deception as principle themes. The same distorted language we use for referring to enemies as “partners” is here replicated in our use of the term “same-sex marriage.”
The enemies of America can see this. They revel in it, even though their own societies are riddled with perversion. The Russians were the first to be victimized by insane leaders. Lenin and Stalin were psychopaths who modeled the Russian state on their own mental disturbance. But Americans were never ruled by Lenin or Stalin. So what is our excuse? How have we come to something that is worse than Leninism or Stalinism? For the dictator’s wickedness is something we can relate to. It is an old story, going back to the Caesars. But an evil that inverts reality, that violates language and mocks foundational concepts, is not an evil that can be understood in the same way. Here is a spiritual perversion that brings us to the doorstep of the occult; to something unseen, to something connected with the black arts.
On the day of the fateful decision Justice Scalia noted: “What really astounds is the hubris reflected in today’s judicial Putsch. These Justices know that limiting marriage to one man and one woman is contrary to reason; they know that an institution as old as government itself, and accepted by every nation in history until 15 years ago, cannot possibly be supported by anything other than ignorance or bigotry. And they are willing to say that any citizen who does not agree with that, who adheres to what was, until 15 years ago, the unanimous judgment of all generations and all societies, stands against the Constitution.”
This new knowledge, which attacks the English dictionary, which attacks the foundation of legality itself, signifies the destruction of all law. The U.S. Supreme Court has committed an act of unfounding, of unraveling, of self-elimination. This act does not really speak to the issue of tolerance or intolerance for a particular minority. This act is only nominally about homosexuals. In fact, the gay community has been used as a political pawn to effect a kind of black alchemy. Now, at this point, any violence might be done to anyone. Each of the various “causes” may be activated against the others; for what restraint does the law now have? What reverence? What credibility? It has lost the sense of its own words, descending into madness itself.
There can be no justice when words are used in a perverse sense, when meanings can be inverted and the world turned on its head. No ideology can make a lie into truth. No special pleading will flip the earth on its axis. Universal Law always prevails. The nihilist who denies this law is a harbinger of his own destruction. The society that salutes this nihilist, who elevates him to the Supreme Court, who makes congresses and presidents out of his kind, cannot be saved.
This article was originally published at jrnyquist.com on June 29, 2015. The opinions published here are those of the writer and are not necessarily endorsed by the Institute.
US News Director Robert O’Hara interviews IAI’S fellow and professor from Patrick Henry College, Stephen Baskerville on the topic of fathers’ rights and the crisis in the American family courts.
Our governing elite punishes unvarnished clarity about our Constitution. Intellectual honesty, for lawyers, schoolteachers, psychologists, professors and actors, is costly. Most lie low or join the enforcers. Surely even Roberts, Scalia, and Alito see the gap between them and the Founding Fathers, for whom precedent was impotent against the Constitution.
Absurd though it is, only “constitutional” conservatives honor precedent. The Liberal “mainstream” savors precedents they’ve shot down — or will next chance. Their favorite rulings violate centuries of precedent. But the obvious is hard to see, especially as monumental, abstract questions are addressed in isolation from thoughts of personal advancement. The realm of the mind and methodology that do this are not the pragmatic part that wins court cases, campaigns, and useful friendships. The former withers when neglected for the latter. Even “all star” conservative constitutionalists steer a careful course between the Constitution and what the establishment will tolerate.
Righteous refinement obliges conservatives (holy and secular) to treat these points as uncouth. They are not. They address why Republicans are winning elections and “conservatives” are losing the Culture War, waiting for strict constructionists to fix everything. If we want to preserve for our children what was handed to us we’ll need to stop describing things in grays that are actually black and white.
Let’s drop the talking points about “conservative,” “constructionist” and “originalist” nominees. Such language obscures what’s going on. These nuances are a polite way of pretending that the mainstream in law and government interprets the Constitution differently than we do. No. They are oblivious to the actual content of the Constitution, or they are anti-constitutional. A polite term would be “post-constitutional.”
If Ginsburg, Souter, and friends have a “theory” of constitutional interpretation, they’re keeping it to themselves. When they shake the foundations of the earth from their bench it is neither theory, nor constitutional, nor interpretation. They are, wrote Jonah Goldberg after one heinous ruling, “making it up as they go along.”
We could also call this school of jurisprudence “striking down the Constitution.” “Interpreting” is not “striking down.” Opposite concepts. Conservatives desperately need to call things what they are.
While we’re at it, Roe v. Wade is not “bad law” or “settled law” or any other kind of law. It’s a court opinion on one case. Calling it “law” is a way of reassuring Chuck Schumer that he is a direct spiritual descendant of the Founding Fathers and Justice Thomas is not.
Signers of the Declaration and the Constitution and justices until FDR’s time would cringe to hear constitutionalists call rulings “law” — binding though illegal. Citizens and officials are to reject unconstitutional rulings. Jefferson, Madison, and Lincoln did, citing their sworn oath. It is no accident that judges have no army.
If constitutions count, homosexual marriage remains illegal in Massachusetts. John Adams’s constitution says explicitly the people are “not bound” by any law not ratified by their Legislature. Four Boston judges struck down a constitution that stood in their way — one they’ve sworn to uphold. The word “treason” comes to mind — a strong word that Liberals would use lustily if they could, but then the Left is all about winning and conservatives are about slowing them down.
Has “conservative” governor Mitt Romney refused to enforce a ruling dissenting justices and Harvard law professors say is bogus? His oath compels him to refuse the court its pleasure. He pleads impotence. Do constitutionalists demand that the outlaw justices resign? Silence. Or Romney? No, they fancy him in the White House. At what point will “constitutionalists” stop siding with the establishment against the Constitution?
CONSERVATIVES JUST don’t get it. In a republic judges don’t get to make laws and others are sworn to stop them when they try. Yet we speak as if this is splitting hairs. Jefferson wrote that an unconstitutional ruling is null and void. What part of “void” can’t we understand? Why are “conservative” presidents, governors, legislatures, mayors, sheriffs and school committees siding with Laurence Tribe against Jefferson and Lincoln?
Law schools haven’t taught the Constitution for years. They teach precedent. Conservatives dignify mockery of the Constitution by pretending it’s a matter of dueling legal theories. “We respectfully disagree with the court’s interpretation…”
No. That ain’t interpretation. “Impeachable” is what it is — prestigious degrees notwithstanding. Respect swindlers in high places?
Subjecting Americans to foreign laws, as our Supremes have proudly done, is an impeachable act. That needs no debate and should have been unanimously stated by respectable conservatives when the Supremes announced that we are under nihilist European rulers whom we did not elect and cannot impeach.
We need no nuanced legal taxonomy to tell the White House what we expect in our judges. There’s an oath involved in the job. “Support and defend” does not mean “subvert and pretend.” If that excludes everyone in what liberals call the “mainstream,” fine. If the mainstream is post-constitutional we’ll take someone outside the mainstream.
Lifelong legal conformists need not apply. We want someone who can read the instruction book and for whom a solemn oath does not expire when their fanny hits the bench.
John Haskins is IAI’s Senior Fellow for the Public Understanding of Law, Propaganda and Cultural Revolution..
The opinions published here are those of the writer and are not necessarily endorsed by the Institute.