The 14-year-old girl was raped by her stepfather. Now she’s pregnant. Her vacillating mother is useless, and no larger community stands ready to support her. Should she be forced to have the baby?
The young man was raised in a Christian home but always knew he was different. After struggling for years with his sexual identity he moved to another city, established himself as a gay man, and found his soul mate in that community. Should they be denied the right to enshrine their love in marriage?
The mother of a 5-year-old boy has decided (presumably with his consent) that her son is really a daughter. She changed his name and puts him in dresses and insists that her Christian family support her or they will have no contact. Does she have the right to make this decision?
All these (true) stories challenge our preconceptions and help pave the way for laws about abortion, same-sex marriage, and gender identity. “Hard cases make bad law,” as the saying goes, because the legal rigidity meant to clarify a situation only complicates it—if certain crucial terms are not clarified to begin with.
Last month, a county circuit judge in northwest Arkansas ruled that the state had “no rational reason” to keep same-sex couples from marrying. This rather redundant phrase echoed locally what other judges have said in larger contexts, from Massachusetts to Oregon and all the way up to the U.S. Supreme Court.
“Rational basis review” is an accepted legal technique for challenging laws that appear to serve no legitimate end. But the judges have it precisely wrong: Regarding marriage, and other emotionally charged issues, rationality means stepping back from one’s instinctive reactions, looking impartially at the arguments pro and con, pondering root questions (such as, What is marriage?) and determining the likely effect for all involved parties as well as future generations. This doesn’t seem to be the way courts usually proceed.
Narrative has a strong immediate grasp on the human mind. Try a little thought experiment: If I had not begun with the three short narratives at the beginning of this column, would you have kept reading? And what was your emotional response? The “hard case” appeal is almost irresistible—who would be so cruel as to deny these decent people their happiness? The actual trumps the theoretical.
But the theoretical makes the actual. Let’s consider marriage “rationally”: We see the human race divided into two sexes that are distinct yet complementary. Biology tells us that only a fusion of these two produces children, and children have to be raised. Experience shows us the best context for raising a child, and research confirms it. History teaches us that same-sex marriage has never been accepted in any civilization anywhere. Traditional marriage was never a “law”; it was a given. Rather than dismiss eons of human experience as mere bigotry in order to serve 5 percent (at most) of the population, we should take more time to consider what’s at stake for society as a whole.
Legalized abortion-on-demand was supposed to diminish child abuse and solve the problem of illegitimacy. Since 1973, rates of illegitimacy and child abuse have ballooned, which might be a rational outcome of regarding unborn humans as discretionary. Behind that poor pregnant teen lurks a string of unintended consequences adding up to over 50 million lost lives and immeasurable skewed sensibilities. We don’t yet know the full consequences of the young men signing a marriage license or the transgendered boy coming of age as a girl, but redefining marriage and erasing gender distinctions to accommodate individual narratives may not be rational.
You know someone else who isn’t rational? The devil. He understands the stakes much better than we do and still, like a compulsive gambler at the blackjack table, believes he can win. We humans likewise believe we are practically limitless, even as our practical limits are staring us in the face.