Thursday, February 7, 2013

The Thirteenth Amendment and the Debate that Never Happened on Gay Marriage

If you peruse the briefs filed in the Supreme Court case Hollingsworth v. Perry, on gay marriage, you'll see that the Fourteenth Amendment is now the entire claim that the LGBT lobby holds in order to receive marriage equality via the American courts.

The reason that the Fourteenth Amendment has been invoked is warped but it is tragically telling that so few people have been able to examine the language of "equal protection" and "rights" to date.

Because the Fourteenth Amendment guaranteed to blacks "equal protection" under existing due process, and the judicial history of cases like Plessy v. Ferguson and Brown v. Board of Education has produced a jurisprudence holding "separate" anathema to "equal," gay activists have managed to argue -- successfully, in the Ninth Court of Appeals -- that civil unions or domestic partnerships are akin to racial discrimination, insofar as they target the gay "race" for second class citizenship. To argue as much, as I have documented previously, LGBT activists have had to promulgate an entire ideology based on biological determinism, resurrecting the racial eugenics that produced Jim Crow, only under the name of sexual identity; for if gayness is not biologically insuperable, then they have no case, as the choice to couple with a woman or man is available to all individuals, making heterosexual marriage available to any citizen.

Within this logic, the only remedy is to offer people of the same sex "marriage" and all its rights without creating any distinctions, even to differentiate between relationships that are categorically able (barring a problem such as infertility) to produce new human life, and those that are absolutely not able to.

The application of the Fourteenth Amendment to this controversy is wholly ludicrous, even worse than the case made by corporations that they are a "legal person" and therefore deserve to be protected by the Fourteenth Amendment. The latter shenanigan is a favorite pet peeve of the left-of-center camps among whom the supporters of gay marriage tend to congregate.

One reason that we may see so many right-wing figures now supporting gay marriage under this reasoning (see Roger Simon, Arnold Schwarzeneggar, S.E. Cupp, etc.) is that the promiscuous conferral of Fourteenth Amendment "rights" to gays wanting marriage will seal for good the corporations' rights to Fourteenth Amendment "rights." The sale of sperm, sale of eggs, farming of babies, and renting of wombs would all proceed smoothly under the free-market philosophy that drove the push to grant corporations Fourteenth Amendment rights. So whether intentionally or not, gay marriage's ascendancy under the Fourteenth Amendment will represent the ultimate triumph of neoliberalism and corporate power.

Since I think neither gays nor corporations ought to be protected under this Amendment, I am horrified but not entirely surprised. Regardless of the fact that same-sex-attracted people are overwhelmingly good people, the LGBT lobby took a noble cause -- freeing love from bigotry -- and has transformed it into a tyrannical, fascistic scheme to control all of human nature, from friendship to procreation to social identity to parenthood to education to pleasure to spirituality. Basic happiness has lost a seat at the table of such overpowering constructs. The obvious fact that money enables their control over life and death more than any other factor makes them natural allies of massive corporations. They may join the ranks of the sans-culottes, Stalinists, neoconservatives, and Torquemada -- people who began with a just idea and ended up purveying misery and abuse of others, reproducing systems as bad as or worse than what they fought to begin with.

I have already documented in copious articles and posts the extent to which the LGBT lobby has squelched good-faith inspection of the gay marriage claim to the Fourteenth Amendment. I will not reprise such complaints here. I would like to remind readers of this blog, however, that the amendment preceding the Fourteenth bans "slavery" in all forms, and this amendment, glorified in Spielberg's Lincoln, cannot survive if gay marriage becomes protected under the Fourteenth.

Allow me to explain in simple terms: Gay marriage equality means that motherhood and fatherhood are effectively removed as a legal principle from the entire nation's judicial system. With gay marriage equality decreed by the Supreme Court, there is no way for any state to express investment in the rational desirability for a child to be under the "custody" of those who conceived the child.

Instead, in order to comply with the Fourteenth Amendment, children would be placed under the control of two adults who acquired their rights to the child, either by taking it from someone else, uncompensated, using the force of the state;  or by purchasing the child. In the former means, the government becomes the means to pirate human bodies from their natural guardians, while in the latter means, human beings are being bought and sold. In either case "slavery" is occurring, with very predictable social ills. A quick gloss on the history of human bondage that led to the Thirteenth Amendment is worth keeping in mind here.

Much to the worry of philosophers from Hobbes to Rousseau, human beings are born helpless and needing the dominion of adults in order to survive and develop. Under whose dominion should babies and children fall? So long as marriage is defined as a husband and wife, the answer is relatively simple. Impressionable dependents are to be the charges of those who conceived them through lovemaking, first and foremost, before any other arrangement is decided upon by the state. Only under extraordinary measures would a biological father or mother be legally replaced by, and would his or her dominion be transferred to, a second mother or second father not biologically interested in the child. If one parent died, abandoned, or proved unfit for the child, then of course an adoption could occur. Otherwise, the force of the state would always, in a basic ethical sense, wish to avoid chattel slavery by prioritizing the parental powers of actual parents, always by definition a man and a woman.

Slavery had existed for thousands of years before Samuel Sewall wrote "The Selling of Joseph" in 1700, arguably the first anti-slavery document in English (based largely on scripture). It would take another 165 years for the Thirteenth Amendment to pass:

Note: A portion of Article IV, section 2, of the Constitution was superseded by the 13th amendment. Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. Section 2. Congress shall have power to enforce this article by appropriate legislation.


Note first of all that slavery is not limited to simply being forced to work against one's will. The phrasing is specific: "neither slavery nor involuntary servitude." The text reflects the American understanding that there was more to slavery than simply being made to do hard labor. Slavery was a larger system of buying, selling, and owning human life.

The text doesn't make an exception saying that children can be bought and sold as long as the purpose is the good-faith desire of loving adults to have a child that they can't conceive. The text does not state that as long as conditions are documented as decent, livable, even beneficial, it is appropriate to buy, sell, or own human beings. The argument that slavery was better for blacks than being left in Africa had been put forward, already, by black poet Phillis Wheatley (see "On Being Brought from Africa to America") as well as Thomas Jefferson (see Notes on the State of Virginia) and James Fenimore Cooper (see American Democrat.) The Thirteenth Amendment had to be passed because the American republic, as well as other nations of the nineteenth century, determined that regardless of the qualify of life, the very idea of buying, selling, or owning human beings as property was harmful to society and a crime against humanity. It was an evil in and of itself.

For thousands of years slavery, serfdom, and bondage were accepted all around the world. The reason that the nineteenth century saw the first universal condemnations of slavery is to be found in the Romantic Era's construction of "childhood." It was only in the nineteenth century that children were fully understood as humans with imaginations, emotional faculties, and understandings at all comparable to adults.

The fact that children were dependent on adults who had to keep them in a state of subservience for their own good could no longer, after the Romantic Era, be used as a rationale to keep in place slavery in its typically justified form. Slavery was justified, quite often, based on the fact that orphaned or abandoned children were best put to use by exchanging some sort of stewardship for the compensation of the child's labor. Hence, someone bought a baby and took care of it, and then expected to get a return on the investment through the grown child's labor, as a kind of bond debt. The word "bond" grew out of such an arrangement.

The abolition of the Atlantic slave trade in 1807, pursuant to an act signed by Thomas Jefferson, came six decades before slavery was abolished. After January 1, 1808, it was technically illegal to import new slaves to the United States. Why did slavery experience six decades of life after being, it would seem, legally debunked by Thomas Jefferson?

Children and procreation are the key to answering that question. It was clear that slavery was wrong in the eyes of most Americans by 1807, but there remained the matter of black children. If slave-owners could breed existing black slaves and then create a stock of helpless black infants, then there was a continued rationale for needing a legal system that allocated power over such infants within the same framework that structured the pre-existing slave trade.

The result of the 1807 abolition was a traumatic epidemic of rape, forced sex, surrogacy, incubation, baby farming, and "insemination", combined with the systematic removal of infants from any contact with their biological parents. Babies were bought and sold under this system. (For instance, a female infant could be worth as much as $40,000 in today's money, because it held the promise of further babies for sale once the girl became a woman.)

It is because of the horrors that came with severing guardianship of children from their biological parents, combined with changing views of childhood, that slavery finally became repudiated as a concept. The forced labor and whippings of slaves were of course terrible, but these were not entirely shocking to people of the nineteenth century, all of whom had to labor for long hours to survive, and most of whom knew what it was like to be beaten. Women were beaten by their husbands, young men were flogged on ships until President Franklin Pierce's anti-flogging act of 1853, schoolmasters could still whip children, corporal punishment was inflicted by mothers and fathers on children, etc.

What made nineteenth-century people willing to debunk "slavery" in its entire conception as the sale and purchase of human beings was what they saw it doing to the sacred bond between child and biological parent. Even the racial aspect of slavery was only alarming to the extent that a race was being specifically targeted for these emotionally scarring manipulations of their lineage, heritage, and bonds to children.

The nineteenth-century slave narratives document extensively the physical abuse of adult slaves, but these are not the parts of their texts that would have provoked the largely female audience for such works in the nineteenth century. It was the discussion of black women's bodies being used to incubate children they were then denied access to, the reduction of black men to sources of sperm, and the use of children as human chattel, that finally made the word "slavery" in all its force an ethically bankrupt concept with no place in our republic.

Gay marriage is the single most prominent means of reversing the Thirteenth Amendment and bringing slavery back to the United States, even under many of the same guises. "Gays" have been deemed a race with biologically ordained rights not to share property with the opposite sex, as a result of the Fourteenth Amendment being applied to their case. Hence gays are a race biologically ensured the right to buy and sell babies of the "straight" or "mixed" races.

If gay marriage is given the full force of law, then children are no longer the natural charges of mothers and fathers who conceived them through lovemaking. Rather, they are the property of two adults who have stolen or bought the power over such children -- not only in the de facto sense of extraordinary circumstances arising (such as a divorce) but in the de jure sense. Gay marriage equality guarantees that the two adults who have bought a child can demand that the police, family court, schools, and other public powers use force, if necessary, to keep their charges under their control, should a child run away, misbehave, or be taken up by its excluded biological parent. This is how the world got Dred Scott, because slave-owners argued that for their full property rights as citizens to be respected by law, the state had to physically constrain their charges who wanted not to be under their power.

What I am describing is not a fanciful image of the distant future. India recently had to ban gay surrogacy contracts, Russia has blocked gay adoptions, and a high court of Europe is now considering the case of two lesbians who invoke human rights to replace all custodial rights of a child's biological father with an unrelated woman who's simply romantically involved with his biological mother. This is going global, like the African slave trade. It is wreaking havoc on families, courts, international governments, and most of all, children.

This is very ugly. I would have never wanted to be in the unenviable position of speaking as a lesbian's son, and a member of the LGBT community, naming slavery as the thing that gay activists are seeking. But that is in fact what is happening. Like the purveyors of the Spanish Inquisition, Robespierre's reign of terror, or Soviet gulags, gay activists began with legitimate claims but simply allowed unexamined ideological flaws and their own greed to blind them to what is fast becoming a crime against humanity.