Just as voters in much of the country are sophisticated enough to acknowledge that progressive policies implemented with a strong, dictatorial hand are detrimental to our society (and if we’re honest, we’ll acknowledge that they can only be implemented with a strong, dictatorial hand, in the end), people in parts of the country are still debating the merits of cases for and against same-sex marriage.

One aspect of that debate has always fascinated me.  The side professing to represent the sophisticated view of the future actually tends to fall away from reason toward a sort of primitive assertion of its tribal truth.  Professing a certain view about marriage marks one as a member of the tribe, and that’s all there is to it.  Take a look at John Finnis’s analysis of a legal ruling by Seventh Circuit Court of Appeals Judge Richard Posner, covering Indiana and Wisconsin.

Just as advocates for same-sex marriage have all along tended to do, Posner simply ignores the states’ strongest (and central) argument for preserving man-and-woman marriage as a distinct classification.  Advocates like Posner ignore those arguments because they are ultimately irrefutable; it must be put aside as a basic assumption and a declaration of one’s tribe.

This sort of primitive tribalism isn’t inherently bad or undesirable.  After all, the principles laying out our rights in our nation’s founding documents are simply asserted and (presumably) require assent in order to participate in our society fully.  Still, as with the principle of “faith guided by reason,” a sustainable society — especially a sustainable free society — has to be careful what notions it chisels onto the list of requirements for tribal belief.

Frankly, Posner’s conclusion ought to be terrifying to people who moor their reason to the bedrock principles of the United States.  If the nature of a child’s birth must be seen as irrelevant to his or her relationship with the two people raising him or her, then there’s no reason biological parents should have any special claim to their children.  Finnis quotes Posner as follows:

[The government’s] encouraging marriage is less about forcing fathers to take responsibility for their unintended children—state law has mechanisms for determining paternity and requiring the father to contribute to the support of his children—than about encouraging parents to contribute to a stable relationship in which they will be raising the child together.

Note, for one thing, the tremendous leap the judge makes, here.  Sure “state law has mechanisms” to identify a biological father and force him to put up some money, but that’s quite a narrow subset of “taking responsibility.”  Most parents consider their responsibility to be much broader — most important in areas that the state can never compel.

Posner winds up backwards.  The state’s interest in encouraging stable relationships is most significantly a means of encouraging stable relationships with their children.  If the state’s interest is in the adult relationship, and not the adults’ relationships with their children, and if the state sees parental responsibility mainly in terms of paying for their room and board, then the state is putting itself forward as the true ultimate legal guardian of the children.

In Posner’s construct, the government’s interest in marriage is to encourage two people into suitable arrangements to act as the government’s contractors in watching after children.  And what the government can give, the government can take away.  If the mechanism of marriage isn’t sufficing to encourage couples into stable relationships, then we may find government quickly falling back on the “mechanisms” of the law to put the children into environments that the state considers better.

An article from the Associated Press that recently appeared in the Providence Journal shows that things can quickly get more terrifying.  A married lesbian couple in Ohio, both women white, mistakenly received sperm from a black man, and now they are suing over the mistake based on (as the reporter puts it) the “stress and anxiety” of raising a biracial child in a racist world.  As their lawyer says, “They’re saying, we asked for something, you gave us something different, and now we have to adjust to that.”

In our society, we once worried about the effect on children of feeling like they were “mistakes,” meaning that their biological parents produced them inadvertently.  We’ve reached the point that little Payton is a “something,” explicitly different from what her legal parents intended to purchase.

In essence, they’re arguing that the government has mechanisms to force the company to take responsibility for its unintended product.   If we’re in the realm of consumer law, one wonders whether a company that discovers its mistake before birth should have the right to offer an abortion as the only remedy for which it will pay.

Worse, though, is the question of the government’s rights and responsibilities.  If raising a dark-skinned child in a certain community is such a hardship, it’s not implausible that government do-gooders will assert the authority to find a community that’s more conducive to the child’s mental health.

The Commonwealth of Massachusetts recently kept a girl in its custody for over a year because it decided that her parents had followed the wrong doctor’s diagnosis. As I noted in a videoblog a few years ago, British authorities are already taking children away from their parents if they are overweight.

Some of these cultural questions, particularly over artificial insemination, are driven by technology and will be difficult to resolve (and the resolution probably shouldn’t come from government, certainly the courts).  But at the very least, judges shouldn’t be implementing radical changes by ignoring legitimate arguments based on the demands of a progressive tribal belief.