Category ►►► Matrimonial Madness

November 20, 2009

Maritalphobic Democrats Strike Again!

Generally we use the "Matrimonial Madness" category for discussions of same-sex marriage; but not this time. Today, in a bolt from the blue (staters), the Senate Democrats have snuck a ringer into Majority Leader Harry "Pinky" Reid's (D-NV, 70%) version of ObamaCare... they created a new tax with a nasty "marriage penalty" to punish dopes who actually tie the knot, instead of simply living together (evidently the Democrat preferred option):

Senate Democrats' health care bill would create a new marriage penalty by imposing a tax on individuals who make $200,000 annually but hitting married couples making just $50,000 more....

"Yes, this structure can create a 'marriage penalty' for some couples. It also creates a 'marriage bonus' for others," [Jim Manley, a Reid spokesman] said. "A married couple with one wage earner can earn up to $250,000 without facing this higher tax, whereas a single person in the same job with the same pay would be hit by it."

But a married couple in which each earner makes $150,000 would be hit with the tax, whereas an unmarried couple living together with the same incomes would not.

Ryan Ellis, tax policy director at Americans for Tax Reform, said the new marriage penalty comes on top of an existing one that's always been part of the payroll tax, which funds Social Security and Medicare.

Say what they will, it appears that Democrats simply cannot abide the institution of marriage. They seek to destroy it any way they can:

• "No-fault" divorce;
• Enacting adoption laws that don't "discriminate" against unmarried adoptive parents;
• Altering the very definition of marriage willy-nilly;
• And now by heavily taxing marriage -- but not shacking up.

Senate Minority Leader Mitch McConnell (R-KY, 80%) is beside himself:

"If you have insurance, you get taxed. If you don't have insurance, you get taxed. If you need a life-saving medical device, you get taxed. If you need prescription medicines, you get taxed," said Senate Minority Leader Mitch McConnell, Kentucky Republican, who is leading the fight against the bill.

And now, if you get married, you get taxed.

But it's not just marriage that Democrats hate and fear; they also despise patients who want to control their own medical care:

Several relatively small tax increases will be aimed at health savings accounts and medical savings accounts. One will change the definitions for medical expenses that qualify as itemized deductions. Another will raise the penalties for withdrawing funds from these vehicles. A third would limit health-related flexible spending arrangements.

"All of these changes are designed to make health savings accounts less attractive and cripple consumer-directed health care plans," said Michael Cannon, director of Health Policy Studies at the Cato Institute. Altogether, they would raise about $20 billion through 2019.

Take that, you villains trying to decrease your own health-insurance premiums via MSAs and catastrophic care! We can add a couple more to McConnell's collection: If you have an expensive health-insurance plan, you get taxed. If you have a cheap health-insurance plan... you get taxed.

Liberals and Democrats: They're nothing if not consistent in their hatred of every traditional American virtue, from self-reliance to traditional marriage to fiscal sobriety to self-defense to American exceptionalism.

Say... let's put them in charge of all energy production, all financial transactions, defending the nation against the Iran/al-Qaeda axis, and the medical care of every individual American. What could possibly go wrong?

Hatched by Dafydd on this day, November 20, 2009, at the time of 4:52 AM | Comments (0) | TrackBack

November 18, 2009

How to Win Fiends and Infuriate Voters

The Washington D.C. City Council is poised to slap same-sex marriage (SSM) on the table in our nation's capital, whether the citizens want it or not. And now, to add insult to penury, the District of Columbia Board of Elections and Ethics [sic] has made its own contribution to democracy... it has rejected a traditional-marriage initiative from the ballot:

The D.C. Board of Elections and Ethics on Tuesday denied a petition to put a ballot initiative before city voters that would define marriage as between a man and a woman.

The decision came the same day the D.C. Council scheduled a Dec. 1 initial vote on a bill to legalize same-sex marriage.

The two-member elections board said it could not accept the Marriage Initiative of 2009, filed by the Stand4MarriageDC coalition, because it "authorizes discrimination prohibited under the District of Columbia Human Rights Act." About 100 people testified during a hearing on the initiative last month.

"We have considered all of the testimony presented to the board and understand the desire to place this question on the ballot," board Chairman Errol R. Arthur said. "However, the laws of the District of Columbia preclude us from allowing this initiative to move forward."

Let's put this in context: The Board has ruled that it cannot allow the citizens of D.C. to decide whether to ban SSM, because if they vote to do so -- which they likely would -- that would "violate" the very law it just replaced!

Now in most jurisdictions, if citizens enact a new law that supercedes an old one, then the superceded law is no longer operative. It is defunct. It has ceased to exist. It is an ex-law. If it wasn't nailed to its perch, it would be pushing up daisies.

But evidently in D.C., laws passed by the Council abide forever and and a day; and they can never be overturned by the people, despite their supposed citizens' initiative. New York is shortly to have "show-trials," but Washington D.C. already has "show-votes."

But of course, when the party in power* is so consistently, relentlessly, belligerently opposed to its own constituents, it's no wonder they fear democracy almost as much as do the mullahs of Iran. As H.L. Mencken is reputed to have said -- or written -- or thought up -- or wished he had thought up -- "If the government can't trust the people, why don't they just dissolve them and elect a new people?"

I would not be shocked to discover the Board and the City Council right now poring over the lawbooks, trying to find some precedent to do exactly that.

 

* The thirteen-member Council of the District of Columbia comprises 11 Democrats -- and 2 "independents."

Cross-posted on Hot Air's rogues' gallery...

Hatched by Dafydd on this day, November 18, 2009, at the time of 5:14 PM | Comments (5) | TrackBack

October 21, 2009

All Over but the Outing

This is one of those posts where I'm reading a lot of subtext packed into a soupçon of text. In such cases, it's always possible that I'm reading more than the authors and actors intended; but on the other hand, that doesn't mean my read is wrong.

We retort, you deride!

The passion play begins thus: Over the past several years, the legislature of the state of Washington has enacted three succeeding domestic partnership (DP) laws, each moving DP closer to same-sex marriage (SSM); with the last iteration, lawmakers gave all marriage rights to domestic partners... literally everything but the word "marriage":

Lawmakers in Washington state have taken an incremental approach to increasing gay rights without actually taking on the state's marriage ban, which was upheld by the state Supreme Court in 2006. The following year, lawmakers passed the state's first domestic partnership law granting a handful of rights, like hospital visitation, to gay and lesbian couples.

In 2008, that law was expanded to add more rights, and this year the latest law added such partnerships to all remaining areas of state law where currently only married couples are mentioned. The statutes range from labor and employment rights to pensions and other public employee benefits.

Nobody, of course, has troubled to ask the citizens of Washington state whether they're down with this. Why give ignorant peons who lack "the vision of the anointed" any say in such an important institution as DP?

Nobody until now:

Conservative Christians rallied to get Referendum 71 on the November ballot, arguing that Washington state's latest move is the last step before full civil marriage for gay and lesbian couples in the state.

Referendum 71 would of course repeal some of these grants of rights; it's the equivalent of California's Proposition 8, which overturned a state supreme-court ruling mandating full SSM. As in California, voters will now actually have the opportunity to overturn the offending actions of their own arrogant legislature.

(Note: I am not a hypocrite; I would absolutely oppose state or federal courts overturning the DP law by judicial decree -- absent a specific prohibition the state constitution -- just as I oppose courts rewriting the marriage definition to force SSM down citizens' throats. This is a purely political question. But the people themselves are the "best evidence" of what they want, rather than the proxy of a state legislature; thus I always accept a referendum on such basic issues as more binding and dispositive than a mere vote in the state lege.)

But here is where things get creepy: In response to the petition that put Referendum 71 on the ballot, gay activists have become obsessed with "outing" everybody who signed it -- publicly printing not just their names but their addresses as well. They even wanted to put all the personal information on the internet, so it would easily be searchable by anybody who suspected his neighbor might be insufficiently tolerant.

Activists claim they are only trying to exercise the state's "public records disclosure law;" but it's hard not to come away with the sick feeling that SSM proponents are hoping that friends and neighbors of the petition signers will punish them for their apostasy, especially if they live in a liberal (or gay) neighborhood. That is, I believe the legal fight to release the signers' names and addresses is a transparent attempt to intimidate and frighten them into not signing any future petitions.

So far, the legal fight has see-sawed between a District Court judge, the notoriously left-liberal 9th Circus Court of Appeals, and one Supreme Court Justice:

In September, U.S. District Judge Benjamin Settle temporarily barred state officials from releasing the identities of those who signed the referendum petitions. Settle held that releasing the names could chill the First Amendment rights of petition signers.

Gay rights supporters and open-government groups sought to disclose the names, saying that signers should be identified so the public knows who is behind Referendum 71.

The 9th U.S. Circuit Court of Appeals reversed Settle's decision last week. The appeals court said Washington's secretary of state can release the names and addresses of people who signed petitions calling for a public vote.

In appealing to [Justice Anthony] Kennedy to intervene, Protect Marriage Washington argued that state officials had suddenly changed a long-standing practice of keeping confidential the identities of those who signed referendum petitions. The group said signers of the petition fear hostile confrontations from gay rights supporters and noted that their campaign manager had received death threats.

Justice Kennedy issued a temporary restraining order on the ruling of the 9th Circuit; and just today, the full Court ruled on the TRO:

The Supreme Court on Tuesday upheld an order preventing Washington State from releasing the names of more than 120,000 people who signed petitions seeking a voter referendum on whether to give same-sex couples most of the same rights as married couples.

The 8-to-1 decision, with Justice John Paul Stevens dissenting, upheld a recent ruling in Federal District Court in Washington that was overturned last week by the United States Court of Appeals for the Ninth Circuit.

The order by the Supreme Court said the injunction against releasing the names would remain in place at least until parties involved filed new motions. That process could take months and essentially assures that the names will remain anonymous through the Nov. 3 referendum.

This was an obvious attempt to harass and intimidate voters whose only sin was to exercise their First Amendment right to petition government for a redress of grievances, and it went far beyond mere political hardball. "Hardball" is falsely accusing Rush Limbaugh of being a racist... a man who has one of the largest megaphones in the world to announce his innocence.

Rather, the activists' targets were free elections and the vote. The campaign to "out" the signers of the Referendum 71 petition is the vilest abuse of "action directe" I've seen in ages: The gay Left is trying to corrupt the very fabric of democracy itself.

The core of democracy is legislative representation coupled with public participation -- not legislative usurpation enabled by public passivity and poltroonery. By trying to frighten voters into shunning the political marketplace, the anti-71 mob orders the citizens of Washington to sit quietly in the dark and wait for instructions.

That's despicable. It's unAmerican. It's French.

The role of the government anent petitions, as the Supreme Court has pretty clearly held (though it was only reinstating a TRO), begins and ends with verifying the petition signatures to ensure they are all registered voters and that they petition circulators have met the numeric threshold. There is no valid reason to release the names and addresses, thus holding the signers hostage to any gay-rights thug who wants to go straight-bashing.

(By the same token, I would fight to protect the privacy of anyone who signed a petition to implement SSM in Washington or any other state. But then, I'm not a leftist activist: I actually believe in all that hooey about freedom of speech and the right to petition.)

I'm going to stick my limb out: The attempt to publish dangerous and threatening information about the signers will be Washington's "Paul Wellstone funeral," a defining moment that triggers a number of citizens to turn out and vote for Referendum 71 who, absent the blatant intimidation tactics, would have just stood in bed. Referendum 71 will not only pass, it will pass with a much larger majority than it would ordinarily have done.

When all is said and much is done, we are all still Americans, with a deep respect for the sacred traditions and creeds of our unique country. The inability of the Left -- including our illustrative president and his henchmen -- to understand that much about the United States of America is our greatest weapon against them.

Cross-posted on Hot Air's rogues' gallery...

Hatched by Dafydd on this day, October 21, 2009, at the time of 12:26 AM | Comments (1) | TrackBack

October 2, 2009

Texas State Judge Overturns Texas State Constitution

Perhaps one of the legal beagles in the 'sphere can explain this to me, for I am only an egg in legal matters:

A Dallas judge ruled Thursday that Texas' ban on gay marriage is unconstitutional as she cleared the way for two gay men to divorce, the Dallas Morning News reported.

State District Judge Tena Callahan said the state’s bans on same-sex marriage violates the constitutional guarantee to equal protection under the law....

Attorney General Greg Abbott released a statement saying that he will appeal the ruling.

“The laws and constitution of the State of Texas define marriage as an institution involving one man and one woman. Today's ruling purports to strike down that constitutional definition -- despite the fact that it was recently adopted by 75 percent of Texas voters,” he said.

Can Texas state judges strike down elements of the Texas state constitution on grounds that the constituiton is unconstitutional? I'm pretty sure that state judges in California cannot, but perhaps I'm mistaken even in that.

I was under the (perhaps naive) apprehension that state judges can strike down statutes for violating provisions of the state constitution; and of course a federal judge can strike down both a state statute and parts of a state constitution for violating the United States Constitution -- for example, a federal judge could strike down a clause of a state constitution, enacted by referendum (even by 75% of the voters), that restricted voting to whites.

But I didn't think state judges could strike down the state constitution, any more than a federal judge can simply rule a clause of the U.S. Constitution "unconstitutional." If a later clause contradicts an earlier one, then I have always assumed that the latter triumphs -- the most obvious case being the 12th Amendment in 1804, which directly contradicted parts of Article II, Section 1 of the Constitution, dealing with how we elect a president.

I have always been taught in school that the 12 Amendment changed the Constitution; but under the reasoning of State District Judge Tena Callahan, any federal judge could simply have ruled the 12th Amendment unconstitutional -- because it contradicted the section it was designed to alter! Similarly, any federal judge could have struck down the 13th Amendment (ending slavery), the 14th Amendment (due process and equal protection for all races), the 16th Amendment (income tax -- all right, maybe judges can kill off that one), or even the 21st Amendment repealing the 18th Amendment, thus reinstating alcohol prohibition across the land.

Clearly then, it seems to me, if federal judges cannot rule the U.S. Constitution unconstitutional, then state judges cannot rule the state constitution unconstitutional. Or am I simply ignorant of the niceties of law?

I suppose Callahan would argue that the state constitution violates the U.S. Constitution's 14th Amendment. But does a state judge have jurisdiction to consider that question? If so, then couldn't a state judge overrule a federal judge who may have already decided the opposite way? I thought the whole purpose of jurisdictional rules was to prevent such collisions in the first place.

And there is another point worth considering: The voters of Texas enacted a constitutional amendment to ban same-sex marriage; but if a single liberal state judge can simply wave her hands and consign that vote to the dustbin of history, then Texas no longer as a "republican form of government"... which, by the way, appears -- at least to my non-law-schooled eyes -- to be guaranteed to each state by Article IV, Section 4 of the United States Constitution.

At the very least, a "republican form of government" must ultimately be ordained and established by "we the people," not by judges; a judge should never be allowed to throw out pieces of her own constitution to suit her political ideology. That must be what is guaranteed by Article IV, section 4, for it to have any meaning or purpose whatsoever.

Unless some state judge somewhere has overturned it.

Hatched by Dafydd on this day, October 2, 2009, at the time of 12:47 PM | Comments (1) | TrackBack

August 17, 2009

DOMA Derangements: Obama Wants MA to Dictate SSM to USA

Now that the presidency of Barack H. Obama is in a quiet period, with no roiling controversies or raging political disputes at the moment, he has reannounced his intention to repeal the Defense of Marriage Act (DOMA) -- presumably whether or not Congress agrees -- so that Massachusetts, Connecticut, Iowa, Vermont, New Hampshire, and (possibly) Maine can force the other 44 states to accept same-sex marriage (SSM), regardless of the homophobic votes of the knuckledragging, redneck, slope-browed, inbred, hillbilly, religion-clinging citizens of the vast majority of the American population. After all, we can't turn over the whole political process to mere voters and trust them to do the right thing:

President Barack Obama insisted Monday he still wants to scrap what he calls a discriminatory federal marriage law, even as his administration angered gay rights activists by defending it in court.

The president said his administration's stance in a California court case is not about defending traditional marriage, but is instead about defending traditional legal practice....

Obama said he plans to work with Congress to repeal the law, and said his administration "will continue to examine and implement measures that will help extend rights and benefits" to lesbian, gay, bisexual, and transgender couples under existing law.

The government says in its court filing that it will defend the statute in this case because a reasonable argument can be made that the law is constitutional -- a standard practice of government lawyers.

As everybody in the known universe understands, the purpose of DOMA is to prevent some states from forcing every other state to accept same-sex marriage (SSM); its operative language is very simple:

The first part is found at U.S. Code Title 1, Chapter 1, §7:

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife.

That is, same-sex unions are not marriages under federal law. The other element is at U.S. Code Title 28, Part V, Chapter 115, §1738C:

No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.

This is the provision that says states do not have to recognize an SSM, even if it is legal in the state where it was performed.

The president, by announcing that he still intends to repeal DOMA, signals that he wants to take away the people's right to determine the marriage law of their own state: Any same-sex couple living in a state that doesn't recognize SSM could very simply take a trip to a state that does, get married, then return and demand to be treated the same as an opposite-sex married couple... and to hell with what the citizens of that state have said at the voting booth.

So the national government, in addition to taking over dozens of banks, General Motors, and the entire health-care industry, wants to take over the state marriage laws as well! ("None dare call it...")

Incidentally, if Brietbart is to be believed (and why not?), it's not strictly true, as they reported above, that the Justice Department is "defending [DOMA] in court." In fact, towards the end of the story, we discover that they're doing so in such a half-hearted manner one might almost conclude they're intentionally sabotaging their own case, hoping to lose:

The administration also disavowed past arguments made by conservatives that DOMA protects children by defining marriage as between a man and a woman.

"The United States does not believe that DOMA is rationally related to any legitimate government interests in procreation and child-rearing and is therefore not relying upon any such interests to defend DOMA's constitutionality," lawyers argued in the filing.

They begin by throwing into the dustbin of politics a very powerful argument for DOMA that could easily sway the federal courts, and the absence of which could destroy the case.

Of course, if they do lose, they can always say they tried! That way they get the policy they want but duck the consequences.... Just another day in Obamaland.

Hatched by Dafydd on this day, August 17, 2009, at the time of 6:24 PM | Comments (1) | TrackBack

August 12, 2009

Pithing on Marriage

Anent same-sex marriage: Marriage is fundamentally a union of opposites. If gays don't want that, fine; it's a free country -- but don't demand that the rest of us call it "marriage."

That's like having a big slice of tiramisu and a Mai Tai, and calling that "dinner." It's not a liberty issue... it's a punchline.

Hatched by Dafydd on this day, August 12, 2009, at the time of 7:40 PM | Comments (1) | TrackBack

June 19, 2009

An Immodest Disposal

The state of California -- the most populous by far at 36.8 million -- is staring down the barrel of a $24 billion deficit; there is a very strong likelihood that barring any unforseen windfall, California will have to declare bankruptcy within the next few months.

Now mind, $24 billion is chickenfeed by federal standards -- even the federal standards preceding the One Who Will Spend Us Into Oblivion. However, despite pleas from all factions in the factious state government (some sincere, others perhaps not so), the feds flatly refuse to bail California out.

Now I happen to agree with this position; states should not be "bailed out" when their financial messes are entirely self-generated... which describes California to a tea party. During the boom times, the state -- well, the Democratic legislature, which has run the state more or less continuously, in despite of Republican governors, for decades -- the Democrats enacted enough new "entitlement" programs and other new and frivolous spending to fill the Yosemite Valley. Now times aren't so flushed; and my libertarian response is, "You buttered your bread, now sleep in it."

But you have to admit, refusing to bail out one of the most liberal, pro-Obama, leftist-socialist states in the United States is awfully out of character for the Barack H. Obama administration and the Congress of Majority Leader Harry "Pinky" Reid (D-Caesar's Palace, 70%) and Squeaker of the House Nancy Pelosi (D-Haight-Ashbury, 100%).

Great leaping horny toads, Obama has already pledged more than twice as much to bail out a single company: GM. GM employed 243,000 people in 2008, probably less now; California employs 242,939 total people as of May, 2009 -- not to mention having the largest economy, again by far, of any state: $1.812 trillion gross state product. One would think it a no-brainer for the Democrat president and Democrat Congress to offer "fiscal amnesty" to the Democratic state with the largest number of electoral votes, the largest economy, and the largest population.

So why aren't they?

I really don't think it's because the Oogo-istas running the federal government, who are throwing money at every problem the pops up and nationalizing one major industry after another, have got a sudden attack of fiscal restraint. Rather, I think there are two other major reasons for the denial:

1. California has a (nominally) Republican governor, Arnold Schwarzenegger, who is term-limited and cannot run for re-election in 2010.

It will be an open contest; but if Schwarzenegger has actually solved the state's long-running fiscal crisis, Republican candidates for the legislature and the governorship will receive a major electoral boost... which they sorely need; on its own merits, the California Republican Party is possibly the most inept and dimwitted in the Union.

But if Schwarzenegger is seen to fail -- even if it's due to the Democratic legislature's refusal to enact any meaningful spending cuts -- Republicans will nevetheless get the blame; and the Democratic nominee (probably Los Angeles Mayor Antonio Villaraigosa) will be elected by a landslide.

Simply put, the Democrats see a fantastic chance to grab the governor's mansion to go along with the state legislature, thus enjoying a limitless free pass to enact any socialist measure, no matter how unpopular, no matter how insane. Democrats may be calling for a federal bailout of California in public, but I strongly suspect they're privately sending a very different message to the Obamacle and his bestial virgins... one that says, "Hold off on any bailout until Antonio, not Arnold, demands it."

Certainly Democrats are not acting like they want to solve the crisis (at least not until 2011); with a state budget of $131 billion, they would only need to cut 18% across the board to have a balanced budget again. From 1998 to 2008, the budget grew from $73 billion (in 2008 dollars) to $131 billion, an 80% spending increase -- what a spree! Reducing the budget by $24 billion would only mean returning to 2006's budget. Yet the legislature "cannot find" even 5% in cuts!

I don't think any serious person could argue that the legislature is honestly or sincerely trying to solve the crisis. And I don't believe they will try -- until a Democrat is in place to take all the credit.

2. I suspect the second main reason for no Obamic bailout of California is lingering anger and resentment over the citizen's constitutional amendment that overturned California's State Supreme Court on the issue of same-sex marriage (SSM).

Proposition 8 was passed by a strong majority; it amended the state constitution to declare marriage to be only between one man and one woman; no other form of union would be legal or recognized in the state as a "marriage." (The 18,000 same-sex couples who married during the brief interval in which it was legal are "grandfathered" in.) I suspect that a great many Democrats in Congress -- and the One Himself -- still seethe that the people of the state took back their own government from the elites... and still fear that such resistance might set an example to citizens in many other states, on many other issues. Government of the people, by the people, and for the people has never been very popular in "people's republics."

Yes, I know; President Obama says that he agrees with the voters of California that marriage should be restricted to mixed-sex couples. Color me skeptical; I find it much more likely that, like many other Democrats, he sincerely wants to revolutionize marriage, along with every other bedrock principle upon which Western Civilization is built. I believe he would not only be fine with same-sex marriage but polygamy as well -- that strokes two special-interest groups at once!

But he doesn't want his fingerprints on such a radical, drastic change in social culture. The president would much prefer others to do the dirty work (preferably federal judges, who are more reliably liberal and don't have to worry about re-election), while he stands above the fray and votes "present." He thought he had nabbed the biggest prize of them all when the California Supreme Court issued its ruling last year; the state is home to the largest population of gays, of Hollywood celebrities, and of liberals (with, of course, a gigantic overlap), and it routinely gives Democratic candidates the largest amount of campaign cash.

But then along came the traditional-marriage amendment, chopping the legs out from under the court's ruling. Injury became insult when that selfsame court -- ignoring the blatant "hints" from the Left -- actually held that Proposition 8 was valid and legitimate, and would be enforced.

And then immediately afterwards, along comes Republican Gov. Arnold Schwarzenegger, cap in hand, begging for money from the federal coffers. Hah!

Sure, Schwarzenegger himself pretty much supports SSM, and he's hardly what anyone would call a conservative. Ne'ertheless, he still has that scarlet R stitched onto his 52-inch chest; and that was sufficient to evoke all the rage, hatred, and fury: You don't expect the Democratic Congress to give money to a state full of homophobes, do you? (Especially not a state whose citizens had also voted in recent years to end state subsidies to illegal aliens and to terminate all racial-preference programs statewide. Good heavens, they must be Nazis!)

So take my thoughts for what they're worth; I'm glad we weren't bailed out, no matter how disreputable the reason why not. But I'm apprehensive how this will all play out in next year's gubernatorial and legislative elections. It's hard to imagine that the liberal monopoly here could get any worse; but no matter how deep you already are, you can always dig another sub-basement.

Hatched by Dafydd on this day, June 19, 2009, at the time of 6:57 PM | Comments (6) | TrackBack

May 28, 2009

Martial Arts and Marital Darts

Why is the gay Left so hot for same-sex marriage, but not for gay soldiers?

It's an intriguing question; facially, you'd think that if benefitting gays were the primary goal of gay activists -- restoring them a vital and almost undisputed liberty that is currently withheld for obscure and indefensible reasons -- that the very first task they would tackle would be to remove the absurd and dangerous requirement that gays serving in the military do so in secret.

Oddly, however, gay activists by and large ignore that rather breathtaking denial of a fundamental liberty to gays in favor of agitating in favor of same-sex marriage (SSM). Oh, if you delve deep into the websites of some of the major gay activist organizations, you can eventually find that they issued a press release three months ago, blasting some general -- who bears a striking resemblance to the loony brass-holes that Hawkeye Pierce regularly made a monkey of every week on M*A*S*H -- for saying something either ignorant or conservative about gays in the military.

But the endless daily soap opera of As the Marriage Turns is splashed across the index page in full-color, animated Flash graphics, leaping off the page in 3-D modeling, or flinging itself like a caffeinated squirrel out of your monitor and onto your desk (or your lap, if you're unlucky enough to be reading the site on a laptop). The difference in emphasis is brutally stark.

And all for a cause that can only advance when robed high priests of the American judiciary threaten to erase their own state from the map unless the legislature enacts SSM; whereas President Barack H. Obama could this very day demand Congress change the 1993 "Don't ask, don't tell" law preventing gays from serving openly in the military... and he would probably get his way.

Yet despite his campaign promises, he has not done so... and the Pentagon "reaffirms that it has no plans" in the works, having received no hint from the White House that such a policy change is coming.

The ultimate question for me is... why? Why make SSM a priority over allowing gays to serve openly in the military?

I reckon you're shocked, shocked to learn that Big Lizards has its own answer to that question. (If we didn't, why would we waste the bandwidth for nothing... when we could instead waste it to flog our own pathetic, tired, crabbed nostrums?)

Slither on to see just how pathetic, tired, and crabbed we truly are!

Gays in the military -- shoo, gay, shoo!

There are many points that would give pause even to those opposed to gays serving openly:

• I have never seen a persuasive argument that gays serving openly, rather than secretly, in the military would have a detrimental effect on national security or our warmaking capability.

Nobody can credibly argue today that gay men are any less capable of fighting aggressively than straight men (the idea that gays are "too limp-wristed" or "too effeminate" is laughable); in fact, nobody even tries. The only counterargument I have ever seen -- and it's pretty lame -- is the one used in the current federal statute (10 U.S.C. § 654)... that knowing for sure there were gays in a unit, as opposed to merely guessing, might cause some straight soldiers to freak out:

The presence in the armed forces of persons who demonstrate a propensity or intent to engage in homosexual acts would create an unacceptable risk to the high standards of morale, good order and discipline, and unit cohesion that are the essence of military capability.

As here, this argument is almost never fleshed out; it's left as a hanging assertion, like "Women can't be fighter pilots because they go crazy every month due to PMS." And of course, they don' need no steenkin' evidence; they just say it and glare, as if it would be unpatriotic to ask if they've ever been involuntarily committed to a home for the mentally confused.

This putative "reasoning" is, frankly, risible; it really boils down to "I can't be in a foxhole with Jeffy, he might be looking at me!" There is really no logical distinction between saying "I can't stand the thought of serving next to a homosexual" and "I can't stand the thought of serving next to a black." Though clearly we as a culture have far more of a history of trying to stamp out discrimination against race than discrimination against sexual preference, in both cases the problem is not the individual target of official retribution -- but the reaction of the most bigoted person standing next to the target: Jeff can't serve because Bob is too squeamish.

There is no evidence I have seen to indicate that today, when other members of a unit find out or come to suspect that one of their number is gay, that this disrupts morale, destroys unit cohesion, or leads to any negative consequences whatsoever... except among a tiny number of very bigoted military personnel (making them the problem, not the gay soldier just trying to do his job). In fact, quite the opposite: Many gays who have been prosecuted for discharge have been adamantly defended by their squadmates and fellow soldiers.

Such an argument could have been made in, say, the 1950s or earlier... just as the similar argument against integrating the troops was more believable during and before World War II than after that watershed moment of history; acceptance of racism in polite society took a real nosedive following revelations of Hitler's death camps. But today, the argument of "gay revulsion" is the last refuge of the desperate, clinging to their bigotry.

• Worse, by requiring gays to hide their sexual preference, we create a ready-made pool of potential blackmail victims... gays who might be extorted into aiding or abetting the enemy.

Gays constitute somewhere around 2%-3% of the population, depending how you define "gay;" presumably they have the same range of ethics and morality as anyone else. Hence, while the vast majority of gays would out themselves, risking involuntary discharge rather than hurt their country, on the margins, there would still be thousands for whom the career is more important... just as there are with straight officers who cheat on their spouses.

But the difference is, you cannot discharge a person from the military merely for wanting to cheat but abstaining. But under current law, a gay man or lesbian can indeed be discharged from the military merely for having the "propensity" towards homosexuality... where propensity means "a natural inclination; innate or inherent tendency." He doesn't even have to act on that propensity in order to be punished with the loss of his career.

A homosexual or bisexual can also be discharged merely for revealing his sexual preference or for having "married or attempted to marry a person known to be of the same biological sex," even in a state where that is legal -- even if the marriage occurred before he joined the military; even if he subsequently renounced the marriage, got divorced, and considers himself completely heterosexual now! The fact that he once married a person of the same sex is itself sufficient, if discovered (including discovery by being ratted out by a thwarted blackmailer), to get him involuntarily discharged.

There is no other innate characteristic, especially one that many people believe is inherent and unchangeable (I express no opinion on this point), which can by itself bar an American citizen from serving in the military if he has the physical and mental capacity to do so; all other prohibitions are behavioral... e.g., a convicted felon can be barred from service for something he did, not something he is.

• In a time of existential warfare against an enemy that wants to destroy our civilization because we are who we are, shouldn't it be a liberty issue that every member be allowed to defend that society with force of arms, to his best physical and mental ability?

Yet the law actually goes out of its way to assert that "There is no constitutional right to serve in the armed forces."

I'm certain that is legally correct; there is probably caselaw proving it. But not everything that's legal is necessarily moral or ethical or even in the best interests of civilization itself.

If this war is the crisis and turning point of Western civilization that most of us believe it to be, then we're really not in a position to reject good soldiers, sailors, airmen, and Marines on frivolous grounds of "ickiness" unrelated to martial ability. It's like saying we won't accept soldiers who have hair on their backs, because some people might find that disgusting.

A tale of two priorities

I suspect that if put this way, Americans would probably agree this policy is grotesquely unfair and unAmerican; and in addition, that it is if anything destructive of America's national security needs. In other words, this is a major fight that gay activists could win. So why do they barely trouble to make it, instead focusing nearly all their attention on cramming SSM down our throats? (It's not even a "more in sorrow than in anger" moment; I get the impression gay activists experience an almost orgasmic rapture from thwarting the will of the people anent traditional marriage.)

It can't be because of the numbers of homosexuals affected; would anybody seriously argue that there are more gays who want to marry people of the same sex than gays who want to serve in the United States military? On the contrary, the percent of gays who want to marry appears far smaller than the percent of straights who want to marry, judging from the marriage rate in the few states that allow SSM.

So -- why? Why focus on the controversial, the uphill battle, the cause that has the potential to alienate the usually silent majority, the argument that has lost every time ordinary voters have had a chance to decide? Why not focus instead on the essentially non-controversial cause that is almost a slam-dunk, that even brings many conservatives on board (those for whom the right to defend our culture outweighs their personal disapproval of homosexuality), and that can be justified and argued by appealing to well accepted, fundamental American virtues?

Consider the reaction (non-reaction) to the Supreme Court decision in Lawrence v. Texas, 539 U.S. 558 (2003), the case that found the laws across the nation that banned "sodomy" to be unconstitutional. While some conservatives still decry this decision (such as Michael Medved), even they recognize that to the extent the American people even cared about it, they tended to support it -- as I do. It's clearly a liberty issue, affecting what people can do in the privacy of their own homes; and by the same measure, so is eliminating the thuggish "don't ask, don't tell" policy.

Status seekers

But SSM is not a liberty issue -- it's a status issue. Nobody in the United States is prohibited from being gay, engaging in gay sex, cohabitating, finding a church, synogogue, mosque, or temple that will religiously marry him to a same-sex partner, and presenting himself to family, friends, employers, and indeed all of society, as being "married." Yet even there, nearly all states have domestic partnerships or civil unions that provide all or nearly all of the state-based material benefits of marriage, everything from disposition of property in probate to visitation rights in hospital.

The law in those states that have resisted judicial tyranny says only that the government of that state does not recognize same-sex marriages. They won't send police to break up your wedding, and they won't arrest you for it; but they will withhold official approval... status, in other words.

Yet a miniscule minority of SSM activists want to change the definition of a core social value -- marriage -- not just of the United States but of thousands of years of Western civilization itself; and they want to force that change against the will of the "we the people." They demand that America award the same status to SSM that it awards to traditional marriage, whether the citizens of a state want to do so or not. Status is not liberty; there is no bar to same-sex couples (or larger groups) behaving as if they were married. But the activists demand not only that the state tolerate their preferences but that it applauds them.

By contrast, allowing gays to serve openly in the military requires no redefinition, does not violate any core value, requires no positive affirmation of an outre lifestyle by society (merely tolerance), likely aids national security by expanding the pool of potential soldiers and removing a forced vulnerability to blackmail, and doesn't even require any fundamental change in American morality: You can believe homosexuality is a sin yet still support gays serving openly. After all, we don't reject single people from the military simply because they have sex outside of marriage.

But what about the comparison of laws banning interracial marriage to laws banning same-sex marriage? Isn't that a good argument that SSM is a liberty issue after all?

Sex vs. race: never the twain shall meet

The comparison of SSM to miscegenation is spurious; by the time courts began ruling that laws banning interracial marriage were unconstitutional -- starting in 1948 with Perez v. Sharp, 32 Cal.2d 711, 198 P.2d 17, by the California Supreme Court -- we already had a strong and growing consensus in California that race should not define marriage; the state courts followed the consensus of the citizenry -- they didn't lead it.

In addition, by 1948 -- and especially by 1967, when the U.S. Supreme Court once and for all declared anti-miscegenation laws unconstitutional (Loving v. Virginia, 388 U.S. 1 (1967)) -- we already had a long history of legal precedent for skepticism about official racial discrimination. This history included a civil war, followed by the enactment, from 1865 through 1870, of three constitutional amendments to codify opposition to racial discrimination, and culminating with the 1964 Civil Rights Act.

And of course, we have never had a universal definition of "race" to begin with, because it's scientifically impossible: All scientists agree that racial characteristics exist upon a continuum; there is no sharp dividing line between black and white, brown and red, yellow and white. We are all mongrels, in the very best sense of the word.

But none of this is true anent SSM:

• There is no national or even statewide consensus in any state that I'm aware of that SSM is the same as opposite-sex marriage or should be treated the same. In some states, there may be a slim majority in favor -- though I doubt it. But "majority" is not the same as "consensus," the latter being a much stronger term that means "an opinion or position reached by a group as a whole."
• We have never before had states that allowed SSM; there is no precedent. By contrast, from the very beginning of the United States in 1776, a majority seven of the original thirteen states allowed interracial marriage.
• The courts are definitely leading this charge, rather than reacting to actual changes in social consciousness and democratic legislative actions.
• There has been no SSM amendment or gay-rights amendment to the Constitution and no federal legislation mandating it. In fact, the only federal legislation touching on the issue, the Defense of Marriage Act of 1996, goes the opposite way; it has never been revisited, not even by the Democratic Congresses of 2007 and 2009. No president has ever endorsed SSM, Congress has not passed laws to establish it, and no state referendum has ever enacted it, while a great many have banned it. There is no federal or state consensus of the people in favor of same-sex marriage; it remains the pet project of the pampered, intellectual leftist elite in this country (including the pampered, intellectual leftist elite that controls the Vermont General Assembly).
• And of course, a person's gender, in contrast to his "race," is easily determined with precision, except in strange and extraordinary cases.

Thus, there simply is no valid equation of interracial marriage to same-sex marriage.

A little privacy, please?

Well, what about the point that we should allow SSM because of the fundamental right of privacy?

This one is really dopey: How could demand for public recognition of same-sex marriages possibly be an act of privacy?

Yeesh!

Contrast that nonsensical claim with the perfectly reasonable contention that anti-"sodomy" laws do violate privacy... as they prohibited private sexual activity between consenting adults behind closed doors, even in their own home. See the difference?

"Why" is a four-letter word

All right, we've teased the tiger long enough. Now it's time to open the cage and get our arms torn off and our heads crushed between his mighty jaws. (Some analogies should not be overextended.) I am now prepared to answer the question: Why are gay activist groups so monomaniacal about SSM, but so casual and blase about letting gays serve openly in the military?

I can identify three major factors:

Empowerment is the enemy of control: I believe that gay activists truly do not want gays to be allowed to serve openly in the military, because they truly do not want gays actually mainstreamed into American culture. Special-interest pressure groups like the Gay and Lesbian Alliance Against Discrimination (GLAAD), the AIDS Coalition to Unleash Power (ACT-UP), the Lamda Legal Defense and Education Fund, and Equality California, thrive on power; and their power does not come from mainstreamed gays who are strong and confident to fight to fight their own battles as individuals, as everyone else does. Rather, interest-group power comes from frightened, timid, dependent, isolated people who cling to the activist pressure groups as their only hope.

Similarly, larger "progressive" groups like the ACLU, People for the American Way, Democracy Alliance, and MoveOn.org really, really don' t want liberals to feel empowered; because then they would have no need for those groups. The stock in trade of activists has always been "you're weak and powerless, so you must call upon us -- and pay us -- to fight for you." Unions function exactly the same way, and the last thing in the world they want are workers who are more like independent contractors... they want pliant, frightened workers who are always afraid they're only two paychecks away from starving to death -- and if the union ever disappeared, so too would they.

Gay activist groups are no different: They see a zero-sum game between individual empowerment of gays and control by the activists themselves, and it's obvious on which side of the fence the activists fall.

Mainstreaming gays is not in the Left's interests: Too, just like the various "feminist" organizations and "environmentalist" groups, gay activists are nearly always leftists first and gay-rights advocates second.

How would it benefit them for gays in the service to come out of the closet? They're more easily hooked into Socialism (whether Communist or liberal fascist) when they feel insecure and threatened by having to remain under cover. Remember that a socialist government is the ultimate special-interest pressure group.

Too, the Left tends to be anti-military to begin with; thus, I think many of them despise gays actually serving patriotically in the service, because they see them as sell-outs to the straight, traditional culture, just as so-called feminist groups see women in the military as sell-outs to patriarchy. As well, they see the United States as the primary obstacle to a one-world leftist government -- so why should they want to strengthen American military power?

Therefore mainstream gay groups don't waste much time agitating for gays serving openly in the military, just as mainstream feminist groups don't push for women being allowed into combat -- or even for civilian women to be able to get permits to carry concealed firearms. In a conflict, leftism will always trump individual empowerment... just ask Tammy Bruce how she was treated by the board of directors of the National Organization for Women when she was the president of the L.A. chapter.

Transformers: Activists and other fanatics typically don't want a specific solution to a particular problem... they want the complete transformation of society into something alien. They want to utterly abolish the old human being and create the new starchild -- what Marxists called the "New Soviet Man."

They are also catastrophists: They believe that only by a social cataclysm of Brobdingnagian proportions and cosmic reach can they achieve their final goal. Therefore, they see partial solutions not as advancements but rather as big steps backwards: They take pressure off the system, making it less likely to shatter, more likely to survive -- when transformers want the opposite.

So why do they so hysterically support same-sex marriage -- "protesting" by sitting in busy intersections to block traffic, smashing store windows in an unknowing imitation of Kristallnacht, and shrieking spittle-flecked denunciations of anyone who voted for Proposition 8 as a homophobic bigot -- when they show so little interest in the gays in the military issue? What makes SSM so special?

The cause of SSM is everything that the other is not:

• It's not individually empowering, because individual gay families actually gain virtually nothing from forcing states to call their domestic partnerships "marriages." All the benefit goes to the groups that flex their muscles.
• It fits in perfectly with the Left's general attack on American society as hopelessly bigotted, racist, sexist, and homophobic; and there is a clear divide between Left and Right, Democrat and Republican on the issue, with liberals and leftists supporting SSM and conservatives generally supporting traditional marriage. Thus enacting SSM -- especially through the undemocratic courts -- benefits the larger Left at the expense of the Right.
• Forced legalization of SSM constitutes the most wholesale transformation of traditional marriage, a core Western virtue, that has ever been attempted... and both Left and Right agree that achieving that goal would utterly upend Western civilization, Judeo-Christian religion, and all American tradition. Leftists pine for exactly that, while conservatives want to defend what we have now.

And if you think our tradition of freedom of religious worship will protect churches or synogogues, or even ordinary people, whose religion condemns homosexuality, you're in for a very ugly reality check. Please read this Michael Medved column; he explains why the gay activist tactic of offering "guarantees" that no one will be forced against his conscience to officiate at a same-sex wedding, forced to cater or photograph one, forced to allow gay married couples to adopt children on the same basis as opposite-sex married couples, is really no guarantee at all: As soon as SSM becomes a "fundamental right," any such protections written into law will be swiftly struck down by the courts... in lawsuits filed by the very same activists who offered them as "concessions" in the first place!

Conservatives who clutch for such a "compromise" will quickly find out that the deal is really "I win and you lose."

I believe that the Left, despite denials, knows full well that once they establish the precedent that the people have no right to restrict marriage to opposite sex couples, they will have established precedent for taking away the right of the people to restrict it to couples altogether... paving the way for polyamorous marriages (marriages between more than two people).

After all, if two men have a fundamental right to marry "because they love each other," then what is the legal argument against allowing three men to marry for the same reason? Or two men and three women?

Or -- and this is what it will invariably turn into -- one man and four women, just as the Koran advises. The addition of a religious demand for polygamy in fact strengthens the case against restricting legal marriage to a mere two people. Thus yet another dollop of sharia law will be injected into the squirming body of Western civ.

After a while, it may dawn on the people that a "marriage" that can mean anything in fact means nothing, and they will simply stop getting married, just as in Europe. And it's a short jump from people eschewing marriage to the same people eschewing pregnancy and childbirth. Just as in Europe.

Except of course the Moslem immigrants, who will begin colonizing America the way they have already colonized much of Western Europe, by immigration and demography.

SSM is a poisoned crossbow dart aimed directly at traditional marriage; its real purpose is not to allow "gay marriage" but to destroy marriage altogether; but in fact, it will result in the transformation of America into a sharia-friendly country, including polygamous marriage.

The path of destruction is clear, and yes, in its own way, it too is existential: If we allow same-sex marriage to be imposed upon us, or even if we give up the defense of Western virtues and "go with the flow," our fate will be the same as that of those who went before, across the pond; the barbarians will enjoy their final victory as our culture suicides itself into oblivion.

Hatched by Dafydd on this day, May 28, 2009, at the time of 7:15 PM | Comments (4) | TrackBack

May 26, 2009

Supremes Do the Right Thing

The California Supreme Court has handed down its decision on Proposition 8, the citizen initiative constitutional amendment that overturned a previous California Supreme Court decision, In re Marriage Cases (2008) 43 Cal.4th 757; Marriage Cases had held that the state's restriction of marriage to a union between one man and one woman -- as embodied by an earlier initiative enacted in 2000 (Proposition 22), by a previous 1977 law, and by law as commonly understood from the state's incorporation as a state in the United States in 1850 -- was nevertheless unconstitutional under the equal protection clause.

The court did not reverse that decision today; none of the justices voted that the ruling in Marriage Cases was wrong. But the court did find that Proposition 8 was likewise a valid state constitutional amendment, not a "revision" of the constitution, which would have required legislative approval before being placed upon the ballot. The vote was a healthy 6 to 1.

The net effect is that California is now firmly back in the traditional marriage camp -- except for the roughly 18,000 marriages that occurred in the brief window after the ruling in Marriage Cases took effect but before Proposition 8 was passed.

Chief Justice Ronald George wrote the opinion, which was joined by Justices Joyce Kennard, Marvin Baxter, Ming Chin, and Carol Corrigan. Justice Kathryn Werdegar wrote her own opinion concurring in the judgment that Proposition 8 was a valid amendment, but "dissenting" (so to speak) from the reasoning: She held that the majority was wrong to restrict the definition of constitutional revision to a change that fundamentally altered the way the state governed, as opposed to impinging only upon an individual right.

Werdegar held that an impingement upon an individual right, were it substantial enough, could still constitute a "revision" that requires legislative approval before it can be placed before voters. But she held as a substantive matter that Proposition 8 did not impinge in such a manner upon the fundamental right of equal protection under the law, hence was a valid amendment that required only a petition circulated among voters to qualify for the ballot.

(Interestingly, Werdegar was among the majority in Marriage Cases that held that same-sex marriage was required by the fundamental right of equal protection. I strongly disagree with her on that point; but I'm closer to agreement with her on the procedural question of what can constitute a constitutional "revision" than I am with the rest of the majority.)

The only complete dissent came from Justice Carlos Moreno (who was also, like Werdegar, in the pro-same-sex marriage majority on Marriage Cases). By a most curious coincidence, Moreno also happens to be the only justice on the court appointed by a Democrat, Gray Davis. The other six were all appointed by Republicans: George, Werdegar, and Chin by Pete Wilson; Kennard and Baxter by George Deukmeijian; and Corrigan by Arnold Schwarzenegger.

Ergo, the six justices appointed by Republican governors had great deference for the right of the people of the state of California to enact and amend their own constitution, while the sole justice appointed by a Democrat thought that his interpretation of newly minted "fundamental" rights (which no justice before that day had dreamt existed) trumped the right of the people to determine their own style of government.

Please bear that distinction in mind the next time you are confronted with a vote for chief executive in your state or for President of the United States: Not only do words have meanings and actions have consequences, but so too do political parties.

Now let the leftist circus begin!

Hatched by Dafydd on this day, May 26, 2009, at the time of 11:32 AM | Comments (0) | TrackBack

Hatch As Hatch Can: Venom of the Gay Left

In just four more hours, give or take, the California Supreme Court will release its decision and opinion on three consolodated cases demanding the invalidation of Proposition 8, the citizens initiative that overturned a decision by that same court mandating same-sex marriage in California on bogus "equal protection" grounds. The citizens initiative is one of the greatest tools of real grass-roots democracy, not liberal "astroturf," in America's most populous and richest state. (Which is headed towards bankruptcy and possible receivership; so it goes.)

In just four hours, we shall learn whether we still live in democracy with a government of the people, by the people, and for the people -- or whether we live in a tyranny with a regime of the activists, by the activists, and for the activists. I'm betting that even this court will shy from throwing a sacred Californian right of more than a century and a half standing into the dustbin of history, simply to satisfy a whim of policy preference, in a case that was originally decided by the slim and unconvincing majority of 4 to 3.

The gay Left says that if they do not get the "invalidation" ruling they want -- if the citizens of California are allowed to retain their self-evident right to write their own constitution -- then the radicals will go ape; there will be days of rage:

Gay rights advocates have scheduled marches throughout California and in several other states for Tuesday evening. Organizers say the gatherings will be celebratory if the court rules in their favor and angry if Proposition 8 is upheld.

Activists in the San Francisco Bay area, including several clergy members, said they planned to block the street outside the courthouse and to be arrested in a mass show of civil disobedience if the justices do not invalidate the measure.

"Words are not enough right now. We believe it's time to put our bodies on the line to show that separate is not equal," said Kip Williams, an activist with One Struggle, One Fight, a group that was launched in response to Proposition 8's passage.

I say, let them. Bring it on! Let the world see just how committed the American hard Left is to "outmoded" concepts such as democracy, liberty, and honesty. Let America see the liberal fascists for what they are: unAmerican, even anti-American. Apt pupils of Oogo Chavez and other Stalinists.

As the Emperor Claudius says in Claudius the God, the second half of I, Claudius, by Robert Graves, "Let all the poisons that lurk in the mud hatch out."

In sum, if the court has the audacity (chutzpah is the better word) to flush 159 years of the right of citizens initiative, over a stunningly recent, transitory, and bitterly partisan dispute, it will be the greatest outrage in the history of California jurisprudence... even for those who voted against Proposition 8: You cannot target your invalidations to those initiatives with whose policy you disagree -- without simultaneously invalidating it for all initiatives. I don't think even Los Angeles Mayor and likely next Democratic gubernatorial nominee, Antonio Villaraigosa, would go that far (though certainly San Francisco Mayor Gavin Newsom -- his most likely rival for the nomination -- would).

But if, as nearly everyone predicts, even most of the justices who voted to declare unconstitutional the state's perennial definition of marriage to apply only to male-female unions, nevertheless vote to uphold Proposition 8... then let us see the violent, adolescent Left rage and blow, smashing other people's property, assaulting their opponents, the police, and randomly selected bystanders. Let them show their Jerry Brown-shirts in public.

The medicine will be bitter, but its effect curative for our state's internal organs.

Hatched by Dafydd on this day, May 26, 2009, at the time of 5:57 AM | Comments (2) | TrackBack

April 7, 2009

The Party of Conditional Compassion

Riddle me this...

Liberals have a mad desire to cram same-sex marriage -- let's just say gay marriage for the moment, since that's how they think of it -- down our throats. They demand it willy-nilly, generally by court order (Vermont notwithstanding) and regardless of the desires of the citizens of the state in question. They seem terribly urgent about it, as if it's the most important "civil rights" battle in America today (they mean civil liberties, not civil rights, but let that slide).

Yet very few gays would get married, were the option available, according to the polls I've seen -- and in the real-life states that have enacted it: Massachusetts, Connecticut, California briefly, and so forth.

But lo! There is a much more blatant and much less defensible example of anti-gay discrimination in American society: The federal policy barring openly gay men or women from serving in the United States military... at all, in any capacity.

It's virtually impossible to justify on grounds of military necessity, since it's been many decades since anyone seriously believed that homosexuals are weaker or less aggressive than heteros; and the claims that a policy of inclusion would damage morale are no more defensible than the same arguments made in the 40s against racially integrating the military (the argument is essentially that the morale of gay-haters would drop).

At a guess, I believe that at least a hundred times as many gays serve (more or less secretly) in the military as want to get married to members of the same gender, and an even larger number are veterans or would like to serve in the future. At a guess, if about five million legal American residents are homosexual (loosely defined -- say 2% of men and 1% of women), easily as many as a million could be directly adversely affected by the policy. (I cannot imagine that anywhere near ten thousand gays and lesbians seriously intend to get married.)

And Congress or the president could enact that change right this very minute; I don't think Republicans could possibly muster 41 votes to filibuster a bill to lift the restriction, even if they wanted to -- and assuming congressional action is even required; it's possible that all it would take is an Executive Order from the Commander in Chief.

The Left could do it in a snap, even against unified Republican opposition (which I doubt could be mustered anyway). So why don't they?

Well, I didn't plan to leave that hanging as a rhetorical question. As anybody who has read more of this blog than just the seven paragraphs above knows, I ask because I think I know the answer -- which is simply this...

Democrats and liberals couldn't care less about gays, lesbians, transsexuals, transvestites, or any other such subgroup. They only champion the gay (or blacktivist, or feminist) agenda when a particular policy serves the larger agenda of the hard Left: the destruction of traditional Western culture and its replacement by secular humanism.

Simply and brutally put, destroying traditional marriage advances that liberal agenda, so liberal Democrats pursue it with a passion; but allowing gays to serve openly in the military does not advance that vile agenda -- so liberal Democrats truly could not care less.

The only thing that might shake the Left from its apathy on gays in the military is if Democrats start to worry about the 2010 elections; they may decide that they can disguise their larger socialist agenda with the "beard" of civil liberties. They still don't care about gays -- they'll vote Democratic by 75% to 80% anyway; the campaign would be aimed at Independents, who may be won over by the question of fairness.

Of course, it's entirely possible that the GOP would not seriously resist lifting the ban on gays serving openly in the military. In that case, pursuing the change wouldn't benefit the Left anyway; they couldn't point to Republicans and believably scream "homophobe!" So if the GOP is at least split on the issue, Democrats probably won't waste their time pursuing it, as there is no electoral payoff.

I realize I am sounding more and more cynical about the patriotism of the Left, but is it any wonder? All I read, day after day, tells me that they cannot stand America as we are; the only America they love is Sweden.

In any event, if you are gay, and if you're more interested in serving in the military than in marrying a person of your same gender, then please consider joining the GOP. At the least, you will find yourself among a group of people who honestly respect and applaud your service to the country, however much they may disagree with your positions on a few issues. I think a gay or lesbian soldier, sailor, airman, or Marine would have a much more pleasant time at a convention or fund-raiser headed by Romney or McCain or Palin than one headed by Reid, Pelosi, or Obama.

Hatched by Dafydd on this day, April 7, 2009, at the time of 8:45 PM | Comments (5) | TrackBack

March 6, 2009

California Supreme Court Justices Will Decide Whether They or the People Get to Decide on Same-Sex Marriage

The California Supreme Court (CSC) heard oral argument (no jokes, please) on the constitutionality of Proposition 8, the initiative constitutional amendment that overturned a 2008 CSC ruling that had itself overturned a previous initiative, 2000's Proposition 22, restricting marriage to a union between one man and one woman.

When voters enacted Proposition 22 eight years ago, they merely reaffirmed what had been the law in California ever since it was incorporated as a state in 1850; prior to 2008, same-sex marriage was never valid or allowed here.

There are three questions at issue in the current CSC case:

1. Was Proposition 8 legally placed upon the ballot as an initiative constitutional amendment?
2. Does it violate California's "separation of powers" constitutional doctrine?
3. If the amendment is upheld, how does that affect the 18,000+ same-sex marriages performed during the few months between the imposition of the CSC's decision and passage of Proposition 8?

The bits we don't care about

Issues (2) and (3) are ancillary to the main event. I have yet to see any discussion of how Proposition 8 supposedly violates separation of power. For heaven's sake, it simply defines marriage!

Is the argument that only the courts should get to do that, not the legislature or the citizenry, who write the laws the court supposedly interprets? I cannot imagine anyone taking that suggestion seriously. In any event, nobody seems to be writing about it, so I really can't comment.

And the third point above -- how Proposition 8 affects those same-sex couples who married in the brief window of opportunity -- is irrelevant to the state and country as a whole, however vital it may be to the individuals involved. If the CSC chooses to allow them to remain married -- which seems quite likely to me -- it's only out of compassion, not principle: The court simply feels sorry for the victims of its own malfeasance.

(It wouldn't violate the equal protection clause of the federal or state constitutions, because it's not based upon "immutable" characteristics, even if one believes sexual preference is immutable, but upon the actions of the individuals... no more than any privilege that sunsets. If a gay couple made it to the altar on time, they're in; if not, they're out. No jokes, please.)

Straight to the meat of the matter

Only one argument could strike down the proposition itself: whether it was properly put on the ballot as an initiative constitutional amendment in the first place. At issue is whether it's simply an amendment, which has been part of the initiative process since 1911, I believe; or whether it's sweeping enough to be considered a constitutional revision.

A revision would have required a 2/3rds vote in both houses of our state legislature (the State Assembly and the State Senate) to place it on the ballot, or else the same 2/3rds vote to call a state constitutional convention. Since neither of those were undertaken, if the CSC should rule that Proposition 8 created a "fundamental change to the [state] Constitution," then it would be struck down under question (1).

However, this is an awfully tough argument to make... given that all the amendment does is reinstate a previous initiative statute, Proposition 22, using exactly the same language. And all that statute did was reaffirm the status quo ante. How can reinstating the reaffirmation of the previous understanding possibly amount to a "constitutional revision?"

Mr. Peabody's Way-Back machine

On March 7th, 2000, the people of the state voted to inact an initiative statute comprising the following 14 words:

At this time, California Family Code section 300 defined marriage just that way anyway:

300. (a) Marriage is a personal relation arising out of a civil contract between a man and a woman, to which the consent of the parties capable of making that contract is necessary. Consent alone does not constitute marriage. Consent must be followed by the issuance of a license and solemnization as authorized by this division, except as provided by Section 425 and Part 4 (commencing with Section 500).

Proposition 22 was a precautionary measure against the possibility that California courts might attempt to cram same-sex marriage down our throats (no jokes, please) -- which, as it turns out, was remarkably prescient. So for eight years, Californians believed that the question of same-sex marriage was settled -- at least until supporters could muster enough votes to enact it via their own initiative; they tried once, but it was a disaster for the revisionists.

(The state legislature in California cannot vote to nullify a citizens initiative; they can only vote to place a legislative initiative on the ballot to overturn a citizens initiative... but we get to vote on that.)

We were rudely shaken awake on May 15th, 2008, when the California Supreme Court issued the ruling In re Marriage Cases (2008) 43 Cal.4th 757 [76 Cal.Rptr.3d 683, 183 P.3d 384], overturning the law enacted by 2000's Proposition 22 and all other statutes restricting marriage and the recognition of marriage to one man and one woman.

Four of the seven justices voted to overturn the will of the people of the state of California and legalize same-sex marriage; the names in parentheses are the governors who appointed each justice and the year appointed:

• Chief Justice Ronald M. George (Pete Wilson-R, 1991/1996)
• Associate Justice Joyce L. Kennard (George Deukmejian-R, 1989)
• Associate Justice Kathryn Werdegar (Pete Wilson-R, 1991)
• Associate Justice Carlos R. Moreno (Gray Davis-D, 2001)

The other three justices voted to preserve traditional marriage:

• Associate Justice Marvin Baxter (George Deukmejian-R, 1991)
• Associate Justice Ming Chin (Pete Wilson-R, 1996)
• Associate Justice Carol Corrigan (Arnold Schwarzenegger-R, 2005)

The ruling took effect at the beginning of July, I believe. Since supporters of traditional marriage knew that the case was in the works, and knew that the court would probably rule the way it eventually did, Proposition 8 was already in the works. The initiative "title" -- that is, the description that appears on the ballot itself -- offered by those who qualified it for the ballot was "Limit on Marriage."

It qualified for the November ballot... and then, Attorney General Jerry Brown (yes, the former "Governor Moonbeam"), in a burst of unaccustomed neutrality on a contentious issue, decided to change the title to remove possible bias in the original title. Brown's version? "Eliminates Right of Same-Sex Couples to Marry!"

Despite this bit of skulduggery, the initiative passed by a margin of 4.6%, 52.3 to 47.7. This was significantly less than Proposition 22 had passed by in 2000; but it was a November ballot (which tend to lean more to the left), it had the Brown title, and it was during the Obama sweep of California... a remarkable achievement showing the true strength of California's support for traditional marriage (Hispanic voters pushed it over the top). The lawsuits were immediately filed to overturn it, and those are the cases that were just argued today in the California Supreme Court.

Back to the future

It's generally impossible to say for sure how the court will rule; but in this case, the lawsuit seeking to overturn Proposition 8 looks to be on shaky grounds. The attorneys for the groups seeking to overturn Proposition 8 in the tit-for-tat (no jokes, please) battle came in for some rough treatment from some of the justices... including two justices who actually voted to impose same-sex marriage on the state in the first place, Chief Justice Ronald M. George and Associate Justice Joyce L. Kennard. From the New York Times story linked above:

The toughest and most opinionated questioning came from Justice Joyce L. Kennard, one of four justices who had ruled in May that same-sex marriage was legal.

She said on Thursday that by passing Proposition 8, the voters did not invalidate that entire decision, but in effect changed the meaning of the term “marriage.” It left intact, she said, the substantive rights that the court had granted same-sex couples.

Justice Kennard asked Shannon Minter, the legal director of the National Center for Lesbian Rights, an opponent of the measure, a question that resonated in the hearing.

“Is it still your view,” she said, “that the sky has fallen in as a result of Proposition 8, and that gays and lesbians are left with nothing?”

Mr. Minter argued that if the court upheld Proposition 8, same-sex couples would have “our outsider status enshrined in our constitution.”

According to AP, Kennard went even farther and spoke even more directly to her thoughts on the case:

Justice Joyce Kennard said the court was being asked to decide between two rights - the right of the people to change the constitution and the right to marry.

"And what I'm picking up from the oral argument in this case is this court should willy-nilly disregard the will of the people," she said.

While it's difficult to read the entrails of supreme court oral argument, this does not sound like a justice who leans towards throwing out the persistent vote of the people -- across three elections -- in favor of restoring traditional marriage to California.

I find it even more unlikely that one of the three dissenting justices, who do not believe the state constitution mandates same-sex marriage, would believe that the non-right of same-sex couples to marry would trump the enumerated right of the citizenry of this fair state to amend their own constitution. So if even one of the four justices in the majority of In Re Marriage Cases is persuaded that, notwithstanding the propriety or wisdom of banning same-sex marriage, the voters had the right to do so, then that's it... Proposition 8 stands.

All coming together (no jokes, please)

Yesterday, I was worried; but I'm extremely optimistic today. I feared the four who looked at a constitution that had never even contemplated any but traditional marriage in 153 years of statehood, and saw a constitutional mandate for same-sex marriage, would squint even harder and see that mandate as ineradicable by mere voters (for our own good, of course).

But it seems at least two of the four-justice majority in the earlier case recognize the enormity of the California Supreme Court nullifying a constitutional amendment enacted by the citizens to overturn a previous decision by the California Supreme Court: It smacks of tyranny of the European kind.

But if this amendment is upheld, as I believe it will be, then we in the Golden State have struck a magnificent blow for the right of we citizens of the several states to craft our own government, regardless of what our would-be robed masters command. And of course, we'll have preserved traditional marriage in America's largest state, to the great benefit of Western Civ.

But I'm still keeping my rabbits' feet crossed.

Hatched by Dafydd on this day, March 6, 2009, at the time of 12:01 AM | Comments (5) | TrackBack

March 3, 2009

Bostonizing America

A number of Massachusetts same-sex couples, not content with their judicially decreed right to marry in that state, are now suing the federal government to force them to offer the same benefits to same-sex couples -- income-tax filing status, Social Security, federal pensions, and suchlike -- that they offer to opposite-sex married couples. Surprise, surprise on the Jungle Cruise tonight.

The Associated press story quotes numerous advocates of exactly such a change, including President Barack H. Obama:

President Barack Obama has pledged to work to repeal [the Defense of Marriage Act] and reverse the Department of Defense policy that prevents openly gay people from serving in the military. [DOMA says that states and the federal government cannot be forced to recognize same-sex marriages (SSMs) from other states, despite the "full faith and credit" clause of the Constitution.]

Only one opponent is quoted... at the very end of the article. AP quotes Mathew Staver, whom I've never heard of, from the Liberty Counsel, which I've also never heard of, making a weak counter that amounts to nothing more than a statement of purpose:

"Massachusetts has made benefits available on a state level, but Massachusetts can't force the federal government's hand or the other states to accept same-sex marriage," said Mathew Staver, founder of the Liberty Counsel, a nonprofit that says it's dedicated to advancing religious freedom and the traditional family.

Wikipedia tells me that Liberty Counsel is a husband and wife pair of attorneys, possibly with others, who defend or prosecute cases involving religious liberty; they have some sort of affiliation with Jerry Fallwell's Liberty University and clearly base their opposition to SSM on religion -- which is a very unconvincing argument, since everyone knows we have religious liberty in this country. (There are much better secular arguments against SSM; see many previous posts here on Big Lizards.)

Lost in the non-debate is any nuance. For example, I strongly support the second policy change attributed to Obama above -- allowing gays to serve openly in the military and in combat; but I adamantly oppose SSM. Yet according to the elite media, I don't exist.

There are two classes of people, as seen from Liberalville:

• Positive people who support omnibus legislation to remove each and every policy, public or private, that treats same-sex couples differently than opposite-sex married couples or gay men and women differently than heterosexual men and women... from marriage to adoption to renting a room to military service to being a Scoutmaster in the Boy Scouts of America;
• Negative people who hate anybody who is different, want to see all gays killed, think gays are all going to Hell, are violent bigots, are probably racists and sexists as well as being homophobes (a given), and are vile, disgusting people who should be locked away for the good of America.

No room for Mr. In-Between!

This is the worst form of mass judgmentalism -- which is supposed to be the greatest crime anyone can commit, if you believe liberals believe their own rhetoric. (Personally, I think it more likely they believe in the power of their rhetoric, rather than in its accuracy or honesty. Liberals know the impact of pointing at some poor schnook and crying "Witch!")

The Left does not even recognize individuals, only interest groups; and justice to a liberal or a socialist means a firm understanding of which groups have the power and which can be trodden on.

Gay activists and SSM advocates are tiny in numbers; but as a group, they have tremendous power, because they tap into the authority of the judiciary, where there are many liberal judges willing to prostitute their oaths in order to bring about what Thomas Sowell calls "the Vision of the Anointed."

Such powerful groups must be placated. By contrast, conservatives have emasculated themselves in the last eight years by falling upon and devouring each other -- as we just saw the new Chairman of the Republican National Committee, Michael Steele, do by taking the bait and attacking Rush Limbaugh. Fortunately, when Steele realized he had painted himself into a hole, he stopped digging; but it was a stupid, unforced error... which fits right into the conservative and Republican playbook, alas.

Our greatest problem today is that we seem congenitally unable to get our message out and across the nation, whether it's opposition to statism and socialism, support for traditional virtues, or the urgency of national security and the deadly peril posed by the Iran/al-Qaeda axis.

There is obviously room for some disagreement: I support abortion in the early phases of pregnancy; Patterico supports SSM; and both of us (I believe) support allowing gays and lesbians to serve openly in the military. If the GOP were restricted only to those people who Limbaugh would call conservatives, it would soon go the way of the Constipation Party, the Rewarmed Party, and the Libertine Party.

But we must insist upon vocal support for at least the solid center of the principles of Republicanism:

• The importance of marriage (whether or not one includes SSM under that definition);
• Support for a culture of life (at least where nearly everyone agrees on personhood);
• Defending the nation against all enemies, foreign and domestic (including defending it from arrogant and elitist journalists, who believe in "outing" any classified program they dislike);
• The essential Americanness of individual, mind-your-own-business, personal liberty (as much as possible; but my right to swing my fist ends where your nose begins);
• Capitalism (with some obvious safeguards built in so the whole shebang doesn't collapse);
• Due process and the rule of law (with the conscience of the people being the ultimate safeguard).

Most liberals and Democrats oppose all of these principles in principle, though there are of course exceptions: They scoff at marriage and take every opportunity to undermine it; they support what can only be described as a culture of death (which may be why they find Islamist terrorists so congenial); they oppose individualism in general and individual liberty in particular -- except the "liberty" to be a libertine; they support naked socialism (as we see in the economic policies of President Obama and the Pelosi/Reid axis); and they believe in brazenly abusing due process to achieve their political goals.

Including suing the federal government to force it to de facto recognize SSM -- knowing full well that the Obama Department of Justice is very likely to throw in the towel, since it supports the underlying policy, SSM, anyway, and to hell with any precedent that might set. That's justice and due process... liberal style.

Hatched by Dafydd on this day, March 3, 2009, at the time of 10:14 PM | Comments (8) | TrackBack

January 3, 2009

One Side Fits All

Perhaps I just missed it...

I read this story about the Arkansas chapter of the ACLU filing a lawsuit to overturn the will of the voters in that state (stop me if you've heard this before) to restrict adoption to married couples. I read all the way through it, all the arguments advanced by the plaintiffs in that and several other lawsuits, all the fulminations about how the new law is "unconstitutional."

But nowhere, in the entire article, does the Associated Press even trouble to ask any supporter of the law why he thinks it's legitimate... a new citizens initiative that (stop me if you've heard this before) merely returns the law to the status quo ante, undoing the state Supreme Court decision that struck down the traditional understanding and ordered adoptions and fostering not to take into account the marital status of the new parents when awarding custody.

In fact, the only time they even admit that anyone supports the law (which passed 57-43) is to introduce a couple of bare facts:

The Arkansas Family Council, a conservative group that campaigned for the ban, said it was aimed at gay couples but the law will affect heterosexuals and homosexuals equally.

Jerry Cox, the council's president, said he had expected a lawsuit to be filed if the measure passed.

"We are confident this lawsuit will fail and Act 1 will remain on the books," Cox said.

By contrast, shills for the Left are allowed (encouraged) to explain their side:

"Act 1 violates the state's legal duty to place the best interest of children above all else," said Marie-Bernarde Miller, a Little Rock attorney in the lawsuit....

The group filed the lawsuit on behalf of 29 adults and children from more than a dozen families, including a grandmother who lives with her same-sex partner of nine years and is the only relative able and willing to adopt her grandchild, who is now in Arkansas state care. [So marital status is irrelevant, but a blood relationship is vital? How barbaric.]

The plaintiffs also include Stephanie Huffman and Wendy Rickman, a lesbian couple raising two sons together who want to adopt a foster child from the state.

"It's just wrong. It's an injustice," said Huffman, who lives in Conway. "I'm being denied an opportunity to provide a home for a special-needs child."

The families claim that the act's language was misleading to voters and that it violates their constitutional rights.

Evidently, the anti-marriage ACLU's side is so self-apparent to AP that asking them to allow the "opposition" (i.e., the traditional, American pro-marriage side) to respond is as outlandish as inviting an unrepentent, anti-American terrorist to be interviewed in a puff-piece published in the elite news media. Oh, wait...

As to being "misleading to voters," here is the text of the "ballot title" of the Arkansas Unmarried Couple Adoption Ban; the ballot title is the description of the initiative act that the voter sees at the top of the page (please excuse the all-caps; that's the way states seem to publish these things):

A PROPOSED ACT PROVIDING THAT A MINOR MAY NOT BE ADOPTED OR PLACED IN A FOSTER HOME IF THE INDIVIDUAL SEEKING TO ADOPT OR TO SERVE AS A FOSTER PARENT IS COHABITING WITH A SEXUAL PARTNER OUTSIDE OF A MARRIAGE WHICH IS VALID UNDER THE CONSTITUTION AND LAWS OF THIS STATE; STATING THAT THE FOREGOING PROHIBITION APPLIES EQUALLY TO COHABITING OPPOSITE- SEX AND SAME-SEX INDIVIDUALS; STATING THAT THE ACT WILL NOT AFFECT THE GUARDIANSHIP OF MINORS; DEFINING “MINOR” TO MEAN AN INDIVIDUAL UNDER THE AGE OF EIGHTEEN (18) YEARS; STATING THAT THE PUBLIC POLICY OF THE STATE IS TO FAVOR MARRIAGE, AS DEFINED BY THE CONSTITUTION AND LAWS OF THIS STATE, OVER UNMARRIED COHABITATION WITH REGARD TO ADOPTION AND FOSTER CARE; FINDING AND DECLARING ON BEHALF OF THE PEOPLE OF THE STATE THAT IT IS IN THE BEST INTEREST OF CHILDREN IN NEED OF ADOPTION OR FOSTER CARE TO BE REARED IN HOMES IN WHICH ADOPTIVE OR FOSTER PARENTS ARE NOT COHABITING OUTSIDE OF MARRIAGE; PROVIDING THAT THE DIRECTOR OF THE DEPARTMENT OF HUMAN SERVICES SHALL PROMULGATE REGULATIONS CONSISTENT WITH THE ACT; AND PROVIDING THAT THE ACT APPLIES PROSPECTIVELY BEGINNING ON JANUARY 1, 2009.

I'm not sure which part of this is misleading or even unclear. As to denying the "constitutional rights" of foster-parent or adoptive-parent wannabes... which constitutional rights would those be? Is there actually a constitutional right in Arkansas to adopt a kid? I rather doubt it.

Since AP appears unwilling to allow the pro-marriage side of the debate to speak, I must take up the conservative man's burden (despite my not being a conservative) and explain exactly why we should not allow same-sex couples or other sundry unmarried cohabitators to adopt a brood -- unless there is simply no other option (which is quite rare). So here goes:

1. Children ideally should have both a (male) father and a (female) mother:

   (a) Every person has both "male" and "female" components to his personality that require training and nurturing by the corresponding sex parent... every child needs both sexes in his life, preferably as parents. Since the State is picking the parents, why not satisfy this need?

   (b) Girls learn best how to be women from their mothers, while boys learn best how to be men from their fathers... women best know the special problems girls have, while men best know the special problems boys have.

2. Children ideally should have parents whose commitment to the family extends at least far enough to get legally married. (The question of who is legally allowed to marry should be taken up in a separate initiative or legislative bill all its own.)
3. The State has a vested interest in promoting and encouraging family arrangements that most closely approximate the ideal, and in discouraging or even prohibiting some arrangements -- polygamy, underaged marriage, etc. -- that swing dangerously far away from that ideal.
4. The State has no authority to take children away from their birth parents, but it does have the primary responsibility to ensure that those children under its own care -- adoptive and foster children -- are placed in families that satisfy (3) above.
5. The people of Arkansas have the right, and I argue the duty, to enact such laws by initiative when the state legislature is pathetically unable or unwilling to do so.

I don't undersand why this should not be obvious to at least 90% of the adult population; but at least it was obvious to a majority, and the Arkansas initiative passed by 14 points.

Evidently, however, it is not obvious to the Associated Press... which obtusity, when generalized, may go a long way towards explaining the financial quagmire in which the elite news media in this country finds itself in recent years.

Hatched by Dafydd on this day, January 3, 2009, at the time of 3:38 AM | Comments (4) | TrackBack

November 19, 2008

If the California Supreme Court Doesn't Trust the People...

...Then perhaps it should dissolve them and appoint a new people

As Big Lizards predicted earlier, the California State Supreme Court has agreed to decide several lawsuits that seek to overturn Proposition 8, the constitutional amendment -- on the grounds that it's unconstitutional. The lawsuits advance a novel legal theory of governance by the consent of the governors:

The lawsuits argue that voters improperly abrogated the judiciary's authority by stripping same-sex couples of the right to wed after the high court earlier ruled it was discriminatory to prohibit gay men and lesbians from marrying.

In other words, the voters improperly interfered with the court's right to decide all major moral issues.

Not to mention the fact that Proposition 8 does not "prohibit gay men and lesbians from marrying." It doesn't even mention gay men or lesbians.

Nor does it prohibit anyone from marrying any one (or any group); it only says such marriages will not be "valid or recognized in the state of California." Go ahead and marry a person of the same sex; call yourself married by the lights of your own house of worship; just don't check "married filing jointly" on your IRS 1040 form, unless you're inordinately fond of institutional cooking.

(And of course, it's just as valid for a gay man to marry a lesbian as for a straight man to marry a straight women. Or a lesbian.)

There is another exciting legal argument offered by at least one of the sets of plaintiffs' lawyers in one of the cases:

"If given effect, Proposition 8 would work a dramatic, substantive change to our Constitution's 'underlying principles' of individual [sic] on a scale and scope never previously condoned by this court," lawyers for the same-sex couples stated in their petition.

[Where the expression "never previously condoned by this court" means "at least not since May 15th, 2008," when the Court held -- for the very first time -- that the state constitution required marriage to be "gender neutral."]

The measure represents such a sweeping change [all the way back to the olden times of six months ago!] that it constitutes a constitutional revision as opposed to an amendment, the documents say. The distinction would have required the ban's backers to obtain approval from two-thirds of both houses of the California Legislature before submitting it to voters.

In other other words, the CSSC can utterly upend Western civilization by a simple 4-3 majority... but it takes a supermajority if two-thirds of both houses of the legislature in addition to a majority of voters to change it right back to the status quo ante, the law of the land before May, 2008... which, by an amazing coincidence, happens to be the exact same wording that is now called a "dramatic," "sweeping," "substantive change" to the "underlying principles" of our constitution. (Or the "underlying principles of individual," whatever that's supposed to mean.)

If H.L. Mencken were alive today, he'd be spinning in his grave.

Hatched by Dafydd on this day, November 19, 2008, at the time of 5:56 PM | Comments (13) | TrackBack

October 27, 2008

Defining marriage

Calling a log a wagon doesn’t provide it with wheels, and calling the union of two men or two women a “marriage” doesn’t make it in any real sense a marriage.

Words have meanings, and their meanings matter. One of the basic tenets of liberalism is that there are no absolutes, no black and white, everything is relative; so, in the liberal world, it’s OK for a man and a man to say they are “married,” even though the definition of marriage has never included that meaning.

Actually, the traditions of marriage, and even the continued practice of marriage in some Moslem nations, say that a man can have more than one wife, sometimes multiple wives. Are we prepared to allow that? Are we prepared to allow an adult to marry a child? What about a man or a woman marrying a dolphin or a dog?

To call this a “civil rights” issue is to cheapen and demean the civil rights struggles of the last century. You are violating someone’s civil right if you treat them differently than other people because of what he or she inherently is.

Gays can marry; they just can’t live together and call that marriage, any more than someone who has a bicycle license can use that license to drive a car.

Words have meanings. Marriage is a sacrament, but it also has a civil meaning. If words are to mean what they say, then we need to support Prop. 8 and overturn the California Supreme Court’s decision that itself overturned the overwhelming will of the people of this state.

Hatched by Dave Ross on this day, October 27, 2008, at the time of 3:39 PM | Comments (2) | TrackBack

October 26, 2008

Marriage - a Fundamental Liberty?

In short, no, it isn't... and I don't care what the Supreme Court (U.S. or California) says: Any claim that marriage is a fundamental right or liberty contradicts itself. For the most obvious examples, if it were a fundamental right, then how could it be illegal for a brother to wed his sister? Shouldn't "strict scrutiny" apply to laws against consanguineous marriage, polygamy, polyandry, and even marriage with minors? After all, even kids have freedom of speech under some circumstances. Yet no court has ever even hinted at any such ruling. Any court that has ruled marriage a fundamental liberty is confused, contradictory, biased, bewitched, bothered, and bewildered.

But what about judicial rulings striking down laws against miscegenation? Isn't that just the same as striking down laws banning same-sex marriage? After all, isn't sexual preference beyond individual control, just as race is?

First, we don't know that that is true; but leave that aside. The more important point is that the courts were not acting in a vacuum in the racial case... there was already a long history of anti-racial-discrimination law enacted by the people, which the courts finally decided (in the mid-twentieth century) to enforce. "We the people" held that racial color-blindness was a civil right and liberty, and we signaled this decision by enacting the Civil Rights constitutional amendments (the Thirteenth, Fourteenth, and Fifteenth Amendments to the United States Constitution).

If properly enacted, using the accepted procedure, either a California or a federal constitutional amendment or statute stating that same-sex and opposite-sex relationships (not just people) must be treated the same, then I would think it reasonable that courts begin enforcing such constitutional rights; but we haven't, so they shouldn't.

So if the analogy of same-sex marriage to interracial marriage is improper and invalid -- as it clearly is, in the absence of any corresponding constitutional amendment -- then what is the proper analogy? After long thought, I think I finally have the answer: There is none.

No, seriously. I talked it over with Friend Lee, and we jointly concluded that marriage is sui generis; there is no proper analogy between marriage and any other human institution or activity, nothing we can point to as a model for understanding what would happen to marriage if you monkey with it.

But it is also sine qua non for Western civilization... at least so far as we know. For those very two reasons, it deserves to be let alone.

Let's go a bit deeper and think about this. Religious marriage is clearly a fundamental liberty protected by the First Amendment; nobody should be able to tell you to whom or how many you should be married... in the eyes of your faith. If you worship Ra, and you want to consider yourself religiously married to your sibling, who are we to tell you No?

But civil marriage -- legal marriage -- is a creation of the State, for the purpose of advancing civilized society. Legal marriage is State-sponsored discrimination in favor of a particular kind of relationship, that which most benefits our civil and religious Western society. It's the State sanctioning, rewarding, and cheering one specific type of relationship, which we have believed for more than two thousand years is a bulwark of our civilization: opposite-sex monagamy with a person over the age of consent and not too closely blood-related.

The essence of discrimination is exclusivity: If we are to discriminate in favor of a particular relationship, other relationships must be excluded from the rewards offered for the privileged relationship. If we don't, if everyone is equally special, then as Dash says in The Incredibles, that's the same as saying that no one is special. (This is a "duh" moment.)

There are only two questions that need answers anent civil marriage:

1. Who within the society has the authority to decide the rules that define that exclusivity? Who gets to decide what is right and what is wrong?
2. What relationships should that person or class of persons decide is right? Which relationship should get privileged, while all others are deprivileged?

Answer these, and you have defined a huge chunk of your civilization.

As to question number one, it was already answered 232 years ago by better men than I. See if this sounds familiar:

Thomas Jefferson and his co-conspirators saw as "self-evident" that the only class within society that has the authority to decide the rules that define the most fundamental unit of society -- the family -- is the class of "the governed," that is, the people. It is the most basic, most fundamental right of all. (Governments that rule against the consent of the governed have a special name; we call them tyrannies.)

The people can express their will in two ways: By direct vote, as with California's Proposition 22 back in 2000 or Proposition 8 this year; or by vote of their elected officials.

But not by judicial decree. The judiciary's job is to decide individual cases and occasionally to pass judgment on whether laws comport with the state and federal constitutions... not to make fundamental, deep, and long-lasting changes to society to fit the whims of the "enlightened" and "progressive" judges themselves... the anointed who have "the vision," as Thomas Sowell puts it.

As to the second question, I have made my arguments; just search on this topic, Matrimonial Madness, for a long list. I believe that "opposite-sex monagamy with a person over the age of consent and not too closely blood-related" is still the best relationship for Western civilization, even after thousands of years for us to think about it collectively.

But the only proper issue anent Proposition 8 is the first question. Judicial conservatives believe the people, the "governed," should decide what constitutes marriage; judicial activists think anointed judges should make the call, as they are more enlightened and progressive than the lumpenproletariat voter who lacks even class consciousness. That is the great divide.

Judicial conservatives, of which I am one (despite differences with other judicial conservatives over whether "liberty" interests include the right to sleep with whom one chooses), believe that the people have the authority to choose to extend marriage rights (and rites) to same-sex couples... but they are not compelled to do so, merely because has-been singer Barbra Streisand, San Francisco Mayor Gavin Newsom, and California Chief Justice Ronald George demand it.

If the people want to change the rules of marriage to "anything goes," they can jolly well do so under the normal procedures... which in California means proposing, qualifying, passing, and then enacting a citizens' initiative to overturn Proposition 22. Prop 22 passed overwhelmingly (61-39) in 2000; it reads, "Only marriage between a man and a woman is valid or recognized in California."

Judicial activists on the California Supreme Court had a different opinion, however; led by Chief Justice George, they simply declared Proposition 22 null and void, waving away the will of the people (and the consent of the governed) as irrelevant and immaterial, like Hamilton Burger objecting to Perry Mason introducing direct evidence of his client's innocence.

Now we have Proposition 8 to vote upon a week from Tuesday. By a strange twist of fate, Proposition 8 reads: "Only marriage between a man and a woman is valid or recognized in California." If it passes, then the only option available to judicial activists will be -- to declare the California constitution unconstitutional under the California constitution -- a circumlocution that would be unprecedented and breathtaking in its absurdity.

If it fails, then we may as well conclude that the people have consented to same-sex marriage. I will think it a wretched decision; but the people have the right to make wretched mistakes.

I will accept the decision of the voters. Will the Left? Somehow, I doubt they will extend us that courtesy... and if they did, it would be unique in the annals of their own history. If Proposition 8 passes -- it currently leads in the polls -- then look for a jaw-dropping series of legal maneuvers to once again silence the tongues of the people, in preference to the vision of the anointed.

Hatched by Dafydd on this day, October 26, 2008, at the time of 11:33 PM | Comments (6) | TrackBack

June 22, 2008

Marriage Is a Slippery Slope

Since state supreme courts such as California’s and that of the Bay State, Massachusetts, have chosen to take upon themselves what ought to be the legislative function of deciding what is and what is not marriage, they should be prepared to take responsibility for opening up a can of worms that will reform society, possibly not for the better.

I’m not one who thinks that the world will end if men are allowed to marry other men, and women other women. But by stating that such a practice is “a right,” rather than leaving it up to increasingly liberal legislatures to legalize it, the courts leave little doubt that soon members of cultish offshoots of religions that have long since abandoned bigamy will take their place in line demanding a seat at the table of matrimony.

After all, the concept of monogamy is a relatively recent innovation among the Society of Man. The Bible speaks quite frequently of patriarchs, such as Abraham, who had several wives. In Muslim countries it is still widely accepted practice. If we cannot by statute establish that marriage is between a man and a woman, how can we deny those who say they have a lot of love to spread around many women?

And why we draw the line there? Pedophiles have for years demanded that the right to love those whom society deems “minors.” Although we may draw away in revulsion at such a thought, it becomes significantly harder to deny those rights, particularly if sought by consenting individuals. People such as Hillary Clinton have for a long time argued that children “have rights” over and above those of not being mistreated by their parents. What if a minor argues that he or she has a right to love an adult?

Why stop there? Many people love their pets far more than they care for most people. If they are consumed with “puppy love,” who are we as a society to deny them? Marriage is indeed becoming a slippery slope.

Hatched by Dave Ross on this day, June 22, 2008, at the time of 10:25 PM | Comments (3) | TrackBack

May 23, 2008

California Marriage Protection Act Gets a Jump at the "Starting Gun"

The starting gun was just fired for the November campaign... and in this case, I mean the campaign for the California Marriage Protection Act, a citizen's initiative state constitutional amendment to restore the traditional definition of marriage in California -- now that four judicial activists on the California Supreme Court overpowered three judicial conservatives to force same-sex marriage on America's largest state.

By "starting gun," I mean the Los Angeles Dog Trainer Times has comissioned the first set of polls since the court's decision -- and in a twist that evidently bothered the Times enough that they tried to cover it up by circumlocution, it turns out that Californians begin with a wide and deep antipathy to changing the definition of marriage. All three major party registrations -- Republican, Independent, and Democratic -- support the constitutional amendment, as do men (narrowly) and women (very strongly), as well as (I surmise from the silence) all age demographics; if some age group opposed it, I believe the Times would not be reticent about mentioning the fact.

These poll numbers are spectacularly good for an opening bid! (Hat tip to Patterico.)

And the Times cannot even blame it on "homophobia," an accusation that has become the first refuge of scoundrels in this debate, because by wide margins, respondents have no problem with gays or homosexuality itself.

Let's jump right to the numbers from the L.A. Times poll:

Either way, the poll suggests the outcome of the proposed amendment is far from certain. Overall, it was leading 54% to 35% among registered voters. But because ballot measures on controversial topics often lose support during the course of a campaign, strategists typically want to start out well above the 50% support level.

As Patterico points out on the post linked above, that is a 19-point margin of victory before the first salvo from the pro-amendment camp is fired. But he also notes (with wry amusement, I would imagine) that the Times tries to bury this lede under a flood of generally pro-gay sentiment. Here are the opening two grafs of the article; there are three more "great news for gays!" paragraphs before the Times finally gets around to reporting the actual numbers (so much for the traditional "inverted pyramid" structure that is supposed to characterize news stories):

By bare majorities, Californians reject the state Supreme Court's decision to allow same-sex marriages and back a proposed constitutional amendment aimed at the November ballot that would outlaw such unions, a Los Angeles Times/KTLA Poll has found.

But the survey also suggested that the state is moving closer to accepting nontraditional marriages, which could create openings for supporters of same-sex marriage as the campaign unfolds.

A reader may imagine that the Times is onto something when they say that "because ballot measures on controversial topics often lose support during the course of a campaign, strategists typically want to start out well above the 50% support level." But it's just more disingenuousness on the part of our wretched monopoly newspaper.

In fact, on this particular ballot issue last time, support for the identically worded Proposition 22 actually rose from its initial support to its final victory in June, 2000. Here is a fairly liberal blogger (Calitics) who is a strong supporter of legalizing same-sex marriage:

We all know that initiatives need to be well ahead to start before the advertising ramps up and the No side chips away at the lead. This poll would traditionally signal an initiative in the danger zone. However, the initial polls for Prop. 22 in 2000 were at 58%, and it rose to 61% by election day. Opinions may be fairly hardened on this one.

Support for the amendment is fairly consistent in all demographic groups; Republicans, Independents, and Democrats all support it:

Generally, the poll found consistency between views on the court decision and the proposed amendment. Overall, Californians opposed the court's view by a 52%-41% gap....

Yet support for the ruling did not necessarily lead to opposition to the proposed constitutional amendment, and vice versa. Democrats and independents narrowly backed the amendment despite their support for the court action. Democratic men favored the ruling but were split on the amendment. Democratic women, meanwhile, approved of both the court decision and the amendment.

Also, according to the few internals the Times released (as a graphic!), while men are almost evenly split on how they would vote in the amendment (43% for, 41% against), women -- generally more liberal than men on other issues -- are resoundingly in favor by 58 to 31, a whopping gender gap of 25%, with women being much more supportive of the amendment.

?

But the strong, across-the-board support for the amendment cannot be attributed to bigotry or homophobia. In fact, a solid majority of Californians agrees with me (which means they are correct, for a change): There is nothing immoral about same-sex relationships, and there should be no legal stumbling blocks preventing two (or more) adult men or women -- or mixed groups -- from living together and doing whatever they want to do behind closed doors. That is a simple question of individual liberty.

More than half of Californians [54 to 39] said gay relationships [not marriage] were not morally wrong, that they would not degrade heterosexual marriages and that all that mattered was that a relationship be loving and committed, regardless of gender.

Overall, the proportion of Californians who back either gay marriage or civil unions for same-sex couples has remained fairly constant over the years. But the generational schism is pronounced. Those under 45 were less likely to favor a constitutional amendment than their elders and were more supportive of the court's decision to overturn the state's current ban on gay marriage. They also disagreed more strongly than their elders with the notion that gay relationships threatened traditional marriage.

Oh, yeah, and by the way, they strongly reject the court's decision and resoundingly support the amendment to restrict marriage to the traditional definition. But that's a side issue -- we're talking "generational schism" here!

Interestingly, however, a significantly greater number of registered voters younger than 35 think that same-sex relationships are "morally wrong" than those over 35: 48% of 18-34s think such relationships are "morally wrong," compared to 27% of 35-44s, 37% of 45-64s, and 44% of respondents aged 65+. A greater percentage of young people think gay relationships are "morally wrong" than of senior citizens!

But the fact that a strong majority does not see gay relationships as "morally wrong" does not mean we should change the traditional definition of marriage, upon which our civilization is founded. We have seen what happened in Europe when marriage was steadily eroded as a special institution -- not only in Belgium and the Netherlands, where same-sex marriage was allowed (even encouraged), but in other European countries that abandoned religious-based marriage: Marriage itself was devalued, the marriage rate dropped, and more worrisome, so did the fertility rate among native-born Europeans. (See Mark Steyn's book America Alone: the End of the World As We Know It for why a diminishing fertility rate throughout Western Civilization, other than the United States, is a terrible problem.)

For example, in the Netherlands, according to CBS, from 1995 to about 2000, the marriage rate was struggling back from a previous sharp drop. But when the campaign to legalize same-sex marriage began in 2000, culminating with full legalization nationwide in mid-2001, the rising tide of marriage did a U-turn -- and by 2005, it had plummeted to the lowest level since World War II, when couples in war-ravaged Holland postponed marriage "for the duration."

Another CBS table shows that the marriage rate (marriages per 1,000 Netherlanders) had remained fairly steady, averaging 5.5 from 1995 to 2000; but in 2001, it began a precipitous decline down to 4.4 by 2006, a drop of 20%.

During that period, the fertility rate (children born per woman per lifetime) rose significantly, from 1.53 to 1.73, an increase of 13%... but the entirety of that rise was due to presumably Moslem immigrant women born in Morocco and Turkey. The fertility rate among women born in the Netherlands stayed absolutely stagnant at 1.7 from 2000 to 2005 -- well below the bare replacement rate of 2.1.

Obviously, not all of this drop in marriage and fertility rates among cultural Europeans can be attributed to same-sex marriage; the marriage rate also dropped precipitously in France, which did not legalize same-sex marriage.

But all the factors cited for the drop in marriage across Europe --

• Easy, no-fault divorce laws
• Increasing rejection of religious marriage in favor of civil marriage
• Increasing acceptance of shacking up and out-of-wedlock births as normal
• More leftist and socialist governments that are hostile to traditional religion and values
• And a general rejection of religion by the populations in Europe

-- fit very well into the same disastrous social attitude: Europeans have lost their belief that there is anything special about traditional moral values, including traditional marriage. Expanding marriage to include same-sex couples is just one more example of that, albeit an important one.

So far, we have not seen a similar precipitous decline in the marriage rate or the fertility rate in the United States; and if this Times poll is an indicator -- conducted, as it is, in one of the most liberal states in the nation -- we're also not likely to legalize same-sex marriage in the United States anytime soon.

If this trend holds and the amendment passes, as I believe it shall, we will still be back to the same paradigm we have always had: It's never the people but always the "experts" -- especially our robed masters -- who push radical ideas like legalizing same-sex marriage.

When the people actually get to vote, as in California, they invariably reject same-sex marriage and support traditional marriage, even as they accept same-sex unions short of marriage.

But what about Massachusetts, arguably the most liberal state in the Union? If those who favor same-sex marriage truly believed they could ratify their court-imposed regime with a vote of the people, wouldn't they jump at the chance? Yet the opposite has happened: Democrats in Massachusetts have hysterically opposed any actual vote there.

The simplest explanation is the most likely one: I suspect they have their own internal polling, and they already know who would win.

Our previous (recent) posts on this subject have been:

• Californichusetts, originally posted in March but bumped up to May 15th, 2008, after the court announced its decision; this post lays out the many arguments against same-sex marriage and explains why it is so bad and dangerous -- not just for America, but for Western Civilization itself.
• Marriage, Money, and Ursus Maritimus, posted May 21st, 2008; this post attacks the appalling way that same-sex marriage was thrust upon the people of my home state of California, against their democratically expressed will, by a breathtaking act of judicial activism.
• Patterico and Gay Soldiers: Strict vs. Rational - Liberty vs. Privilege, posted May 22nd, 2008; this post argues a different aspect of the debate -- I voice stalwart opposition to laws criminalizing "sodomy," on grounds that they violate basic human liberty, but distinguish between that liberty and support for traditional marriage.

Hatched by Dafydd on this day, May 23, 2008, at the time of 6:24 PM | Comments (1) | TrackBack

May 22, 2008

Patterico and Gay Soldiers: Strict vs. Rational - Liberty vs. Privilege

Patterico has an interesting post up; I agree with his basic premise -- that pure policy questions should not be decided by the courts but by the democratic branches of government (the legislative and executive branches). But in the course of his otherwise excellent post, he makes, I believe, two fundamental errors: first, mistaking the lucidity of the explanation of a decision for the validity of that decision; and second, applying strict legal reasoning where a broader philosophical reasoning is wanted.

(Some of this is based on suppositions on my part; I'll try to point them out when I notice them.)

Just the FAQs, ma'am

In his post, "Ninth Circuit Issues Deceptively Important Opinion on 'Don't Ask, Don’t Tell'," Patterico slams a panel of three liberal judges on the Ninth Circus for their decision in Margaret Witt, major v. Department of the Air Force, et al -- a case involving the "don't ask, don't tell" policy prohibiting gays from serving openly in the military. And Patterico also berates the Supreme Court's majority opinion in Lawrence v. Texas. He argues that the lack of clarity in the latter created a confusing situation in the former: What level of scrutiny anent gays should courts apply to laws and policies?

This a very important question, as Patterico explains:

The reason this is important is because [sic] the level of “scrutiny” almost always determines the outcome. When courts look at governmental action under a “rational basis” type of scrutiny, it means they’re not making the government work hard to justify its actions. Any conceivable “rational basis” for the government’s action will be enough to justify it.

By contrast, when courts apply “strict scrutiny” to governmental action, they’re essentially walking up and holding a magnifying glass to the government’s decisionmaking process. If the court finds any flaw in the government’s reasoning, however slight, it will strike down the governmental policy.

He then goes on to note that the Court, in its landmark ruling Lawrence v. Texas (majority opinion by Justice Anthony Kennedy) -- which found a fundamental liberty for consenting adults to engage in sexual activity, procreative or nonprocreative, in private (including homosexual activity) -- never properly specified what level of scrutiny to apply to laws and regulations that apply to such sex:

Usually, appellate courts simply state the test they are applying, in a clear way, so that lower courts are easily able to apply the test. This is especially true for the Supreme Court, which must provide guidance for all federal courts in the nation.

But when you’re drunk on judicial arrogance, as Justice Kennedy was in the Lawrence v. Texas decision, the virtue of clarity becomes nothing more than an annoying vexation. The need for clear guidance is petulantly waved aside, as the author of the opinion writes in grand prose. His audience is not the lower-court judges who have to implement his pronouncements. Rather, it is fawning journalists at the New York Times and other elite media outlets.

Thus do the courts find themselves in the predicament of trying to figure out what sort of “scrutiny” the Lawrence v. Texas decision was actually applying. Was it “rational basis” scrutiny? “Strict scrutiny?” Or something in between? Justice Kennedy didn’t bother to say, so the courts are on their own.

One court of appeal has directly ruled on the issue: the Eleventh Circuit, which stated that Lawrence applied “rational basis” scrutiny.

Today, the Ninth Circuit disagrees, saying that some form of heightened scrutiny -- essentially a form a “intermediate scrutiny” -- applies to the Don’t Ask, Don’t Tell policy.

The distinction here would be between a Court declaring that the Texas law prohibiting "sodomy" had "no rational basis," thus was unconstitutional; or alternatively, the Court ruling that whether or not there was a rational basis, the liberty being infringed was so fundamental and vital that the state of Texas had to go farther and show that:

• The law served a compelling governmental interest;
• That it was narrowly tailored to achieve that interest;
• And that it was the least restrictive means for achieving that interest.

Patterico may well be correct on the narrow, legal point that Justice Anthony Kennedy's opinion did not clearly indicate which scrutiny test should be applied. But... "drunk on judicial arrogance?" I cannot believe this attack only targets Kennedy's ability to write a judicial opinion; that would be a rather colossal case of overkill. I can only suppose that Patterico believes the decision itself, striking down "sodomy" laws across the nation, was an example of "judicial arrogance," what we would ordinarily call judicial activism -- that is, legislating from the bench.

Based admittedly on my supposition, I must conclude that Patterico believes there was no "liberty" at issue in Lawrence, no "fundamental right" to have sex that some would call sodomy, and that it was perfectly constitutional (whether or not a good idea) for states to ban it.

I take the contrary position: I believe Lawrence was correctly decided, no matter how good or bad was Justice Anthony Kennedy's legal argument in the opinion. I believe we do have the fundamental right to engage in nonprocreative sex (the usual definition of "sodomy," encompassing far more than gay sex), and that such privacy is a vital liberty issue.

But I completely agree with Patterico that Lawrence should not force judicial decisions in favor of same-sex marriage or striking down the "don't ask, don't tell" policy of the military service, thus judicially forcing the military to allow gays to serve openly. The rest of this post explains why, after the "slither on"...

Agreeable disagreement

Now, let me not make the same mistake that Patterico ascribes to Justice Kennedy; here is exactly where I stand on the underlying issues:

1. I have no argument with Patterico's point that the opinion in Lawrence offered no clarity on which standard of scrutiny to apply; that's a lawyer's question beyond my competence.
2. Likewise, Patterico and I agree that "don't ask, don't tell" is a foolish policy. I believe I'm also in agreement with Patterico (reading between the lines) that the military should simply drop its prohibition against homosexuals serving openly in the military, at all levels and in every MOS for which the individual qualifies. I think the current policy, even under "don't ask, don't tell," has created a terrible potential for blackmail, leading to espionage and sabotage.
3. Patterico and I definitely disagree on same-sex marriage; I believe allowing it strikes a dangerous and potentially deadly blow to Western civilization for reasons I have enunciated many times (most recently, in the reposted Californichusetts). But we definitely agree that whichever way a state decides, the process of decision should be democratic, not judicial (as I noted in Marriage, Money, and Ursus Maritimus, which evidently none of you liked).

4. I have no specific evidence where Patterico stands on laws prohibiting "sodomy," but I imagine (based on extrapolation) that he opposes such laws... but that he believes there is nothing unconstitutional about them; rather, I reckon he believes they should be overturned by legislatures or votes of the people.

   But while I agree with him on the demerits of anti-"sodomy" laws, I dispute the point that they should be constitutional; I believe Lawrence was correctly decided. I'll get to that in a minute.

Where I take issue with Patterico's post is not precisely on point (4) above, though that is the background; where we really part company is that Patterico's post tacitly assumes that a wretched majority opinion in Lawrence (which I cede for purposes of discussion) disproves the validity of the decision itself: A perfectly good decision can be obscured by an incompetent and self-aggrandizing opinion.

I also take issue with another tacit assumption: That if Lawrence v. Texas requires a standard of "strict scrutiny" anent policies such as "don't ask, don't tell," this will automatically force the policy to be overturned.

Scrutinizing "scrutiny"

The second point is the easiest to show; Patterico notes that the plaintiff in the Ninth Circuit case argued that Lawrence v. Texas protects private sexual activity as a "fundamental right," but that the Ninth rejected this position in favor of one Patterico finds barely less sweeping:

Note that the plaintiff

argues that Lawrence effectively . . . establish[ed] a fundamental right to engage in adult consensual sexual acts.

Wow. That argument, if accepted, would grease the ol’ slippery slope up something fierce. To say that any consensual adult sexual act is a “fundamental right” under the Constitution has implications that go waaaaay beyond “Don’t Ask, Don’t Tell.”

The Ninth Circuit doesn’t go that far. Yet. Rather, it takes what sounds like a simple, small step: it decides that the Lawrence court wasn’t applying “rational basis” scrutiny. This is just another step down the slope -- but don’t let its seeming modesty fool you. It’s a big step.

But suppose the court had gone farther and accepted plaintiff's argument. Would that mean that "don't ask, don't tell" would inevitably be struck down?

No, because courts have historically given the military great leeway even with rights everyone agrees are "fundamental"... including the First Amendment rights of freedom of speech and freedom of assembly. The service clearly abridges a servicemember's ostensible freedom of speech; and obviously military service does not grant soldiers complete freedom of assembly: They may be disallowed from leaving the base, they can be sent abroad without their consent, and they can be explicitly ordered not to participate in any political rallies. And they can even be prevented from leaving military service so long as they are still needed. And all this is true even in the post-Vietnam, all-volunteer military.

Regarding the strict-scrutiny standard, national security has historically been a textbook example of a "compelling government need." Courts recognize that armies and navies cannot afford their members the same degree of individuality and liberty allowed civilians, even in a free society. I don't think any federal appellate court ever found that the military draft was unconstitutional, for example; and that actually applied to civilians, not soldiers!

If the military lawyers could persuade the courts that there was any basis rationally related to national defense for preventing gays from serving openly in the Navy, Marines, Army, Air Force, or Coast Guard, then I believe that would pass the "strict scrutiny" test. Thus for purposes of military service, the standards of "strict scrutiny" and "rational basis" wouldn't even be that far apart; I believe the Court would tend to defer to the military leaders, no matter what lower courts held.

Liberty bonds; tyranny severs

In arguing my point (4) above, I will not try to make a legal argument. (I'm not a lawyer, though I sometimes play "sea lawyer" on the internet.) But I don't believe that only attorneys at law are allowed to opine on matters of liberty, nor that their opinion should trump any non-lawyer's opinion.

As I see it, the basic question decided by the Court in Lawrence v. Texas was this: Can government regulate private sex between consenting adults?

This brings up a related, very touchy subject: Is there a fundamental right to privacy implicit within the Constitution? There certainly is no explicit right to privacy; the case Griswold v. Connecticut -- ostensibly about whether a couple could purchase condoms -- held that there was just such a fundamental right to privacy found within (infamous expression alert!) the "penumbras" of other, explicitly protected rights in the Constitution formed by "emanations" from those explicit rights:

The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.

The language seems pompous, antiquated, and quaint, leading many to conclude it is ridiculous and meaningless. But if you actually trouble to look up the words, you will see that the premise is not only defensible, it's actually quite quotidian.

A "penumbra" is "a surrounding area, a periphery." And an "emanation" is just "something that issues from a source." So all that this much derided and thoughtlessly dismissed sentence means is that cases suggest that explicit rights guaranteed by the Bill of Rights have implicit surrounding areas of consitutional protection, formed by the requirements of the explicit rights themselves: Some explicit rights, the Court held, could not be protected without protecting some similar, nearby, or related right that is not explicitly mentioned.

Your penumbra has an emanation...

Taking it out of the sexual realm, let me give you what seems like a good example to me; if a lawyer reading this post believes this to be a bogus illustration, please let me know. The Second Amendment is (I insist) an individual right of every adult in America, with some exceptions (felons, illegal aliens, children, drunkards). Here is what it says exactly, anachronistic punctuation and all:

(The punctuation and spelling were modernized before the Bill of Rights was ratified.)

Note, however, that it doesn't explicitly protect the right of the people to ammunition. The two words are not generally synonymous; there are many references to "arms and ammunition" and suchlike from the 18th century and earlier. So would those of you who reject the very idea of ancillary, implicit rights connected to explicit rights argue that it was perfectly acceptable for the federal government to prohibit the private possession of ammunition?

I doubt it; it's clear that the "right of the people to keep and bear arms" is meaningless if ammunition can be banned. Protecting the explicit right to keep and bear arms requires protecting the implicit right to keep and load ammunition. The right to ammunition forms part of the "penumbra" surrounding the Second Amendment formed by its "emanation" -- the need for ammunition to make the explicit right to arms meaningful.

Examining the private parts

Here is how the Court in Griswold reasoned its way a "fundamental right to privacy;" there is a good, basic philosophical argument here, regardless of whether it was legally well written:

In NAACP v. Alabama, 357 U.S. 449, 462 , we protected the "freedom to associate and privacy in one's associations," noting that freedom of association was a peripheral First Amendment right. Disclosure of membership lists of a constitutionally valid association, we held, was invalid "as entailing the likelihood of a substantial restraint upon the exercise by petitioner's members of their right to freedom of association." Ibid. In other words, the First Amendment has a penumbra where privacy is protected from governmental intrusion. In like context, we have protected forms of "association" that are not political in the customary sense but pertain to the social, legal, and economic benefit of the members. NAACP v. Button, 371 U.S. 415, 430 -431. In Schware v. Board of Bar Examiners, 353 U.S. 232 , we held it not permissible to bar a lawyer from practice, because he had once been a member of the Communist Party. The man's "association with that Party" was not shown to be "anything more than a political faith in a political party" (id., at 244) and was not action of a kind proving bad moral character. Id., at 245-246.

Those cases involved more than the "right of assembly" - a right that extends to all irrespective of their race or ideology. De Jonge v. Oregon, 299 U.S. 353 . The right of "association," like the right of belief (Board of Education v. Barnette, 319 U.S. 624 ), is more than the right to attend a meeting; it includes the right to express one's attitudes or philosophies by membership in a group or by affiliation with it or by other lawful means. Association in that context is a form of expression of opinion; and while it is not expressly included in the First Amendment its existence is necessary in making the express guarantees fully meaningful. [381 U.S. 479, 484]

They follow by a list of explicit rights which can only be meaningfully protected by assuming an implicit but nevertheless basic and fundamental right to privacy. You can disagree with the specific examples cited, yet still logically accept the basic premise. I think nearly everybody believes there is a zone of liberty surrounding the individual, inside of which government may not intrude, except under the most extraordinary circumstances:

• How many of you believe that your state or city -- believing that beige is a particularly soothing color -- can constitutionally pass a law requiring the insides of all buildings, whether public, commercial, or residential, be painted the same shade of beige?
• Can government ban red and blue clothing, because the city council or state legislature (or Congress) declares them "gang colors?"
• Can it constitutionally mandate the number of squares of toilet paper individuals must use?
• Can it ban spicy food, even in one's own home, because it might lead to gastric ulcers and cause more health-insurance claims?
• Can it make kissing in public a criminal offense?

Many people do, in fact, believe that all of these are constitutional... nearly all such folk are lawyers. They implicitly accept the premise that any power not expressly forbidden to the Congress or the states is therefore perfectly proper for them to exercise. (A perfect example of being "overlawyered" in one's thinking.)

But fundamental rights long predate the writing of the Constitution; they even predate the existence of lawyers, let alone any specific, lawyer-generated enumeration of such rights. And the rest of us understand that no matter what the Constitution does or does not say, there are certain natural limits to the totalitarian impulses of government at all levels.

We also accept that our understanding of these fundamental rights will change over time: For example, in 1796, there was no national consensus that all human beings had a fundamenal right to liberty; a certain class of human beings, slaves, were denied that right. The right itself may have existed then, but if so, much of the country didn't accept it.

But regardless of what people would have accepted in 1850 or 1900 or even 1950, today in 2008, I assert that the vast majority of the American people accept that individual adults have a fundamental legal right to engage in consensual, non-commercial sex behind closed doors... including sex that will not produce a baby. Even most Americans who believe such non-reproductive sex is morally wrong rarely believe the government has the authority to jug sinners for engaging in it.

That means that the vast majority of Americans believe government has no authority to bar the use of contraceptives, because the decision of how many kids to have is not within the jurisdiction of government; in fact, that's one of China's great crimes against humanity. The right to use or not use contraceptives is part of a larger right of privacy.

Likewise, most Americans now accept that the right to engage in sex that your local city council disapproves of is also falls within the fundamental right to privacy. This includes, via Lawrence v. Texas, the right of homosexuals to engage in what some jurisdictions used to call "sodomy" -- particularly when one points out that "sodomy" can be defined, and has been defined in the past, to include virtually any heterosexual act other than the "missionary position." If the State has the authority to ban "sodomy," then it also has the authority to prohibit "adultery," which means any sex outside marriage... and that, too has frequently been done.

Real Americans do not see their governments as a surrogate parent (or surrogate priest), making every decision for every American; real Americans reject totalitarianism, even majoritarian totalitarianism. We all "draw the line" of individual liberty somewhere; most of us assume that there are zones of liberty not explicitly protected by the Constitution, but in which government should not intrude nonetheless.

Only a wretched handful believe liberty is precisely and exclusively limned by the explicit words of the Constitution, that any power not expressly prohibited is available for government, merely because the Constitution is "silent" on the issue. Philosophically, in our liberty-based culture, all else being equal, uncertainty should be resolved in favor of individual liberty, the states, or the federal Congress -- in that order.

Liberty, security, and sanction

I support the decision of Lawrence v. Texas striking down "sodomy" laws. So why don't I accept that "liberty" should also require same-sex marriage? What is the difference?

The right of privacy primarily protects private acts; but marriage is fundamentally a public act: It used to be called "publishing the banns;" even today, marriages are generally public spectacles where people spend thousands of dollars and invite all their friends, relatives, and distant acquaintances; many times, they even publish a squib in the newspaper.

Marriage is the public, social sanction of a relationship. Since those desiring marriage seek the approval, even applause of society, it makes perfect sense that society (through its democratic institutions) can constitutionally decide what specific types of relationship it's willing to approve. Under that authority, society has by and large decided it will not approve of marriages between three or more people, between adults and those below the age of consent, between people who are too closely related -- or between people of the same gender.

Marriage is certainly not necessary to make meaningful the right of gays to engage in sex with each other, unless one believes that sex, intimacy, and love can only exist inside of marriage. So nothing in Lawrence or Griswold even speaks to same-sex marriage (or polyamorous marriage).

All right... but doesn't a fundamental right to engage in gay sex force the end of "don't ask, don't tell?"

Again, certainly not... no more than a fundamental right to freedom of speech and the right peaceably to assemble force the end of military censorship and discipline. When you join the military, voluntarily or by being drafted, you give up certain rights formerly protected by the Constitution.

That doesn't mean the military must prohibit gays from serving openly, only that it can if the president and/or Congress so desires: National defense trumps individual liberty among military servicemembers, even under a standard of "strict scrutiny."

Necessary suppositories

Finally, I want to caution again that some of the opinions I impute to Patterico are actually suppositions I drew from reading between his lines; and I could be wrong. It has occasionally happened.

Very occasionally.

But even if I misstook his position on some issue, my arguments still stand as directed against the position itself... which presumably someone holds. It's a big country.

Hatched by Dafydd on this day, May 22, 2008, at the time of 7:07 PM | Comments (3) | TrackBack

May 21, 2008

Marriage, Money, and Ursus Maritimus

I have in my pocket three horrible court decisions: One is a state supreme-court decision from California; another is a decision by a panel of the D.C. Circus Court; and the third is an initial court order followed by further action now pending before U.S. District Court Judge Claudia Wilken, based in Oakland, California.

What do these three decisions have in common? Let's get you some particulars...

California Supreme Court to California Voters: Drop Dead

In a previous post here (Californichusetts), we discussed the demerits of the underlying policy of same-sex marriage. Today, we're more concerned with how the court reached its decision -- the process -- and the implications of such a process for the future of democracy.

A liberal on a bulletin-board I frequent chastised me; "a court would never" -- I paraphase him -- "pull a claim of unconstitutionality out of hat!"

Oh yes they did, sez I; this is easily seen by anyone who actually reads California Chief Justice Ronald George's appalling opinion. But it's even more obvious when reading the magnificent and stunning dissent by Justice Marvin Baxter, which begins on page 128 of the pdf linked above. Baxter wrote perhaps the most devastating dissenting opinion since Hugo Black's dissent on Griswold.

In this case, the court admitted that there was no history at all, none whatsoever, of same-sex marriage even being contemplated in the writing of the California constitution. So how on earth could the court be "in accordance with the constitution" when they say -- and this really is their reasoning -- that the fact that the legislature has passed some legislative relief for gays that does not include marriage means the legislature has inadvertently given "exlicit official recognition" (George's words) to the putative right of persons of the same sex to marry?

It's completely loony. From Baxter (pp. 5-7, 132-134 of the pdf -- the italics are Baxter's):

But a bare majority of this court, not satisfied with the pace of democratic change, now abruptly forestalls that process and substitutes, by judicial fiat, its own social policy views for those expressed by the People themselves. Undeterred by the strong weight of state and federal law and authority, the majority invents a new constitutional right, immune from the ordinary process of legislative consideration. The majority finds that our Constitution suddenly demands no less than a permanent redefinition of marriage, regardless of the popular will.

In doing so, the majority holds, in effect, that the Legislature has done indirectly what the Constitution prohibits it from doing directly. Under article II, section 10, subdivision (c), that body cannot unilaterally repeal an initiative statute, such as Family Code section 308.5, unless the initiative measure itself so provides. Section 308.5 contains no such provision. Yet the majority suggests that, by enacting other statutes which do provide substantial rights to gays and lesbians -- including domestic partnership rights which, under section 308.5, the Legislature could not call "marriage" -- the Legislature has given "explicit official recognition" (maj. opn., ante, at pp. 68, 69) to a California right of equal treatment which, because it includes the right to marry, thereby invalidates section 308.5.

I cannot join this exercise in legal jujitsu, by which the Legislature’s own weight is used against it to create a constitutional right from whole cloth, defeat the People’s will, and invalidate a statute otherwise immune from legislative interference. Though the majority insists otherwise, its pronouncement seriously oversteps the judicial power. The majority purports to apply certain fundamental provisions of the state Constitution, but it runs afoul of another just as fundamental -- article III, section 3, the separation of powers clause. This clause declares that "[t]he powers of state government are legislative, executive, and judicial," and that "[p]ersons charged with the exercise of one power may not exercise either of the others" except as the Constitution itself specifically provides.

The rest is equally brutal.

This decision was a pure power-play: Four members of the court wrestled the other three to the ground, declaring a brand, new right to marry a person of the same sex... and at the same time, declared homosexuality to be a "suspect class," like race, requiring "strict scrutiny" to be applied to any law that affects disparately those with different sexual preferences.

Who needs a legislature, an executive, democracy, or the people themselves, when we have black-robed masters who will so kindly tell us what to do?

But worse even than the policy is the usurpation of the will of the people. The people are striking back now: More than 1.2 million Californios signed a petition to place upon the November ballot a state constitutional amendment that has the exact wording of Proposition 22, which passed in 2000 by 61.4% -- and which the court just struck down. The idea is that if the constitution itself is amended to restrict marriage to one man, one woman, then clearly the court cannot continue to find that same-sex marriage is required by the very constitution that forbids it.

But of course, that assumes at least a faint, embryonic heartbeat of judicial dignity and humility in the breasts of the four members of the majority. If the citizen initiative constitutional amendment passes, but the justices in fact defy the will of the people and double down on same-sex marriage... well, we'll have a full-scale revolt in the Golden State, like the one that led to three California Supreme Court justices being recalled by the people (for persistently preventing the death penalty from being executed).

Democracy only works, and only serves to fuse individuals into a society, when voters have reason to believe their votes actually count. That allows us to accept defeat graciously, because we know that if in the future, we managed to get a majority to see it our way, we can reopen the policy in question.

But if the judiciary only supports democracy so long as the judges agree with the vote, then citizens will have no choice but to seize jurisdiction from the courts. And that could signal the beginning of the end of Western Civ. So let us hope the court accepts passage of the amendment with the same grace that those of us who support it would accept the will of the people should it lose.

Pawing the money

The next case takes place across the country, in the District of Columbia; the Treasury Department is in a lather after a three-judge panel of the D.C. Circus ruled today that folding money "discriminates" against the blind.

And why is that? Because blind people cannot see what denomination bill they have in their wallets! AP takes up the trail of tears:

The U.S. acknowledges the current design hinders blind people, but it argues that they have adapted. Some rely on store clerks to help, some use credit cards and others fold certain corners to help distinguish between bills....

The court ruled 2-1 that such adaptations were insufficient under the Rehabilitation Act. The government might as well argue that there's no need to make buildings accessible to wheelchairs because handicapped people can crawl on all fours or ask passers-by for help, the court said.

"Even the most searching tactile examination will reveal no difference between a $100 bill and a $1 bill. The secretary has identified no reason that requires paper currency to be uniform to the touch," Judge Judith W. Rogers wrote for the majority.

Courts don't decide how to design currency. That's up to the Treasury Department [well... it used to be!], and the ruling forces the department to address what the court called a discriminatory problem.

This is absurd, of course. Recorded phone-help systems at government offices ("Push 1 for English, 2 for Spanish, 64 for Serbo-Croatian...") discriminate against the deaf, because they cannot access that information without "adaptations," like a texting phone. (The recorders of these phone-help trees "might as well argue that there's no need to make buildings accessible to wheelchairs because handicapped people can crawl on all fours or ask passers-by for help.")

Elevator buttons in tall buildings discriminate against the vertically challenged, because they cannot reach the top buttons. Police discriminate against schizophrenics who want to live on the streets, because the cops continually arrest them for sleeping on the sidewalk.

Everybody has some inconvenience in life, and especially so when he has a disability. But failure to create a landscape with no sharp edges -- "Nerfworld," I dubbed it in a story anthologized here -- is not automatically unlawful discrimination.

One blind man makes exactly that point:

Not all blind people agree that U.S. money should be changed. The National Federation of the Blind sided with the government and told the appeals court that no changes were needed.

Charlie Richardson, the legally blind manager of Charlie's Express Stop inside the Capitol in Albany, N.Y., said he doesn't oppose changing the money but disagrees with the ruling.

"To actually be discriminated against is to have something denied to you," Richardson said. "We're not denied the use of money."

But the court did not agree; it has ordered Treasury to redesign all American currency, without regard to what Congress and the President have already decided.

Polar bear on a stick

Finally, recall that a few days ago, some environmental extremists won a court ruling from federal Judge Claudia Wilken, forcing the Department of the Interior to immediately rule whether the polar bear (Ursus maritimus) falls under the Endangered Species Act. As we all expected, this was simply Phase One of a deep plan.

The plaintiffs dropped the other shoe yesterday -- Phase Two of the judicial coup d'état: The enviro-mentally challenged loons have gone back to court to abuse the judicially forced listing of polar bears as "threatened" by "global warming" (which supposedly causes the Arctic ice to melt): They demand a judicial order forcing the Bush administration to implement the Kyoto Protocol, or some similar regulatory regime to combat Anthropogenic Global Climate Change (AGCC) -- a.k.a. Globaloney.

Judge Wilken issued her ruling in spite of (possibly in complete ignorance of) the fact that there is a raging conflagration within the atmospheric sciences community on whether global temperatures are still warming now, whether they will warm in the near future, whether it has anything significantly to do with human activity, and whether we can do anything about it anyway. I doubt she even cared... some scientists said Globaloney would kill the polar bears, and her heart simply bled at the thought.

Thus, she flexed her judicial muscles and forced Interior to dance to her tune. And now the same plaintiffs that she favored once want her to use her robe to force an anti-climate-change policy upon the entire United States, outside the democratic system:

[Interior Secretary Dirk] Kempthorne, echoing President Bush, said last week the Endangered Species Act was the wrong tool to reduce greenhouse gas emissions. Kempthorne that he would propose "common sense modifications" to make sure the polar bear listing would not set backdoor climate policy outside the normal system of political accountability.

The conservation groups said Kempthorne acted improperly.

"On the one hand, he's acknowledging that global warming is impacting polar bears," said Melanie Duchin of Greenpeace in Alaska. "On the other hand, he's not willing to do anything about it. We're asking the administration to uphold the spirit and intent of the Endangered Species Act."

Since when was the "spirit and intent" of the ESA to completely bypass Congress and the President to allow judges to enact sweeping changes to our energy, economic, and pollution regulations, all ordered by an unelected person who holds her appointment for life? I reckon I missed that part of the debate over passage of the Endangered Species Act.

In this case, it's clear that the polar bears don't even enter into the affair, except as hairy, white bludgeons by which leftist enviromentalists hope to pound the Bush administration into combating AGCC -- no matter how many scientists doubt the connection between human activity and global warming, and no matter what it does to the economy. They want to bypass not only the democratic process but also the normal scientific vetting process; instead, they would use the courts to render a final verdict on the issue... quickly, before somebody discovers something contrary!

That last line is not a joke; I believe some of the activists are actually aware of the rising chorus of well-credentialed scientific naysayers, and they want to cut them off at the knees. Once the Judiciary has decided, how could mere research undo that judicial decision? The colossal edifice of Globaloney would stand thus in perpetuity, unaffected by the tides and vagaries of honest scientific theory.

The leaden thread

In the brilliant "Rumpole" stories by John Mortimer, British barrister Horace Rumpole often argues in the Old Bailey that British justice hangs by a "golden thread," the principle that the crown must prove a man guilty before he can be punished, that he starts out with the presumption of innocence. But in America's courtrooms today, we have a new principle -- the leaden thread of judicial activism: This is the presumption by an increasing number of judges that, by virtue of the very robes they wear, they know best how to govern society.

In his column yesterday on the same-sex marriage decision by the California Supreme Court, Dennis Prager nailed the "hubris" -- I would say narcissism -- that applies to all the judges discussed above:

Another reason for this decision is arrogance. First, the arrogance of four individuals to impose their understanding of what is right and wrong on the rest of society. And second is the arrogance of the four compassionate ones in assuming that all thinkers, theologians, philosophers, religions and moral systems in history were wrong, while they and their supporters have seen a moral light never seen before. Not a single religion or moral philosophical system -- East or West -- since antiquity ever defined marriage as between members of the same sex.

That is one reason the argument that this decision is the same as courts undoing legal bans on marriages between races is false. No major religion -- not Judaism, not Christianity, not Islam, not Buddhism -- ever banned interracial marriage. Some religions have banned marriages with members of other religions. But since these religions allowed anyone of any race to convert, i.e., become a member of that religion, the race or ethnicity of individuals never mattered with regard to marriage. American bans on interracial marriages were not supported by any major religious or moral system; those bans were immoral aberrations, no matter how many religious individuals may have supported them. Justices who overthrew bans on interracial marriages, therefore, had virtually every moral and religious value system since ancient times on their side. But justices who overthrow the ban on same-sex marriage have nothing other their hubris and their notions of compassion on their side.

These undemocratic judges ride high above the fray on great, white stallions, passing lordly judgment -- immune from being gainsayed, corrected, or even criticized:

• Four (out of seven) justices on the California Supreme Court know better than the legislature, the governor, even the people themselves; they know better than thousands of years of religious and philsophical systems how to organize society. And by golly, these Anointed -- with their Vision of the perfectability of society -- will fix all our problems for us.
• The D.C. Circus (well, two out of a three-judge panel of the appellate court) feel great compassion for the blind -- itself a noble emotion; so to assuage their feelings of pity and sympathy (and perhaps guilt at being sighted), they order the Treasury Department to implement the judges' own personal solution to the problem they themselves defined. (The decisions of the democratic branches of government which normally have jurisdiction over printing and engraving are irrelevant; those folks just don't share the Vision.)
• And lone Judge Wilken -- I know you're shocked to discover that she is a Clinton appointee, confirmed by the Democratic Senate of 1993 -- decides all by herself that polar bears must be designated as "threatened" (the plaintiffs now demand that be changed to "endangered," the stronger classification)... and she will decide, again all by herself, whether that means we must implement a drastic curtailing of energy usage, costing us hundreds of billions of dollars every year (irrelevant as an issue in the case) and damaging our ability to generate energy for generations to come (equally irrelevant... the poor, suffering polar bears!), all to reduce greenhouse gas emissions that may or may not have anything to do with Arctic sea ice that may or may not be melting in temperatures that may or may not still be rising.

Three cases; three separate jurisdictions; one leaden thread: "benevolent" judicial tyranny... for our own good. And one presidential candidate who promises to appoint that exact kind of judge, and only that kind, in every federal judicial opening he is allowed to fill. Judges who will rule for life, with no realistic way to get them out of office, no matter how egregiously they rule. (Thelton Henderson was never impeached, despite his ghastly ruling that refusing to discriminate on the basis of race constitutes discrimination on the basis of race.)

All right, conservatives... still think there's "not a dime's worth of difference" between John McCain and Barack H. Obama?

It's well at this point to recall Auric Goldfinger's great rule of threes; it was only alluded to in the Ian Fleming "James Bond" novel Goldfinger, I believe, but stated explicitly in the movie: "Once is happenstance, twice is coincidence. The third time is enemy action."

Just so long as we all know what's going on here.

Hatched by Dafydd on this day, May 21, 2008, at the time of 4:51 PM | Comments (2) | TrackBack

May 17, 2008

Boycott Michael Reagan

He is a fool -- a compete and utter asshat. This gibbering baboon, in a fit of pique, is now taking to the airwaves to urge his hundreds of thousands of listeners not to vote for the California Marriage Protection Act on the November ballot. Instead, he urges all conservatives to sit home in a snit, letting the entire election be decided by Democrats... because then they'll see the error of their ways and convert.

What the hell am I talking about? Well, let me give you his own words from his own website:

Talk Radio Host and Conservative Strategist Michael E. Reagan announced today that he will not vote for any ballot measures in the State of California in the 2008 November, election and he urges others to follow suit. During a press availability today at his office, Michael stated, "I am taking my ballot and mailing it directly to the Supreme Court of California at 350 McAllister Street, San Francisco, CA 94102-4797 to allow the judges to decide for us. Mr. Reagan continued, "We have seen this time and time again, Democracy usurped, the voters wishes do not matter, whether its Proposition 187 or the Gay Marriage Ban, its no longer We the People, it is now, They the Judges who make the decisions in the golden state. As the son of a former Governor of this state and United States President, I am disgusted."

Great. Perfect. He's disgusted -- so we have to live with same-sex marriage imposed on us by judicial fiat. By refusing to vote for the state constitutional amendment that would overturn the ruling by the judicial activists on the Supreme Court of the State of California -- and urging all his listeners to refuse to vote -- Michael R. allows the Democrats to make utter fools of all of us. (I guess "won't get fooled again" is not high on Michael Reagan's list of mottos.)

By folding his arms and squatting on the floor, sullenly refusing to vote, he gives the liberal Democrats their fondest desire anent marriage... its destruction as a special institution. Hands it to them giftwrapped. That will teach them a lesson!

We have a chance here, a real chance, to write traditional marriage into the constitution, where it would take another referendum of the people to enact same-sex marriage; not only the legislature but also the state courts would be powerless to impose it on us.

Except... we have this pea-brained radio talk-show host so sunk in despair and simple cowardice that he gives up and goes home after a single judicial setback -- and urges his loyal listeners to do the same.

Ronald Reagan was never like this; he was a fighter. Had President Reagan been as infantile as his son, the Soviet-dominated Warsaw Pact would still hold sway over hundreds of millions of people across East Europe. Thank God Reagan did not slink away to sulk; and thank God he is not alive today to see his son running from a fight because he took a single punch... Ronald Reagan would be ashamed of Michael.

If our troops were more like Michael, Iraq would be more like Iran. Or Sudan. Or Rwanda.

If Ward Connerly were more like Michael, California would still have institutionalized racial discrimination. Maybe Michael has forgotten that proposition 209 was also nullified by a left-liberal federal judge (Thelton Henderson) -- but Connerly was stubborn (where Michael Reagan is faint-hearted), and he fought and fought and fought... and the 9th Circus overturned Judge Henderson's ruling, restoring the ban on affirmative action that voters here had passed in 1996.

I have my own boycott in mind: I want all those listeners to the Michael Reagan show who do not consider themselves cowards to tune out, turn off, and drop out of the pity party:

• If you're a fighter, not a loser...
• If you react to adversity by digging in your heels, not dropping to your knees...
• If you think conservatives, traditionalists, and anti-liberals have a duty to fight against creeping socialism, rather than disengage in a funk and surrender by proxy...
• If you think traditional marriage is worth rescuing, not abandoning...
• If you don't think that giving liberals everything they want will make them come to their senses out of a sense of guilt, but will instead excite and encourage them to overreach further than ever before...

Then please join me in a boycott of Michael Reagan, until he comes to his senses -- and stops doing the Democratic legislature's dirty work for them. Until he wakes up, throws off his narcissistic sulk, and finds a spine:

Step one is to appeal this decision -- for which there is no valid basis in the state constitution -- to the U.S. Supreme Court; step two is to pass the damned California Marriage Protection Act constitutional amendment this November 8th; and step three is to emulate Ward Connerly (not Michael "I'll never vote again" Reagan) and defend the CMPA from the inevitable court attacks that will follow its passage.

Democrats, liberals, socialists, and other liberal fascists are relentless and energized in their schemes to overthrow more than two centuries of Americanism. If we are not equally relentless and even more enegized, the Left will win.

Without massive action by the Right, Barbara Boxer and Barbra Streisand will win; Squeaker of the Assembly Karen Bass and Squeaker Emeritus Fabian Núñez will win, as will State Senate Majority Leader Gloria Romero and President pro Tem Don Perata; Jane Fonda, Tom Hayden, Jerry Brown, Pete Stark, Maxine Waters, Diane Watson, and Dianne Feinstein will all win; the rest of us will lose. And all this, to a large extent, will be because of petulant crybabies like Michael "I'm too sensitive to fight" Reagan.

Boycott Michael Reagan until one of two things happens: Either the worm turns and begins using his show to urge people to vote for the CMPA, as he should have been doing all along... or until he changes his last name, so as to bring no further disrepute onto the memory of our greatest -- and most determined and courageous -- president since Abraham Lincoln.

Hatched by Dafydd on this day, May 17, 2008, at the time of 2:42 PM | Comments (10) | TrackBack

May 15, 2008

Californichusetts - bumped from March pending new post

Surprise, surprise, the California Supreme Court is currently deciding (yet again) whether to tell California voters to go to hell, and to order the era of gender-neutral marriage... just as Massachusetts did! Thanks; I always wanted us to take our lead from Hyannisport.

So let's put on our manly gowns, gird our loins, and pull up our socks: It's time to deal with this invitation to cultural suicide once more.

It boils down to two questions:

• Doesn't the "equal protection" clause of the state constitution require the legalization of same-sex marriage (SSM) as a state constitutional right?
• Even if there is no "right" to SSM, isn't it a good idea to expand marriage to be more inclusive?

On a nutshell, he answer in each case is No -- it doesn't and it isn't. The rest of this post explains why.

How equal is "equal protection?"

In California, it's not just the state legislature that has defined marriage as a union between one man and one woman (explicitly in 1977, implicitly earlier); the people themselves did so in 2000 via Proposition 22, which added Section 308.5 to the state's California Family Code:

The citizen initiative passed overwhelmingly. If a court overturns it, it had better be because the court found it violates a clear, undeniable, and unambiguous right... not just because four justices voted against it seven years ago, and now they have their revenge.

But the only legal argument ever offered is that the rule violates the "equal protection" clause of the California constitution, Article I, Section 7:

Proponents of SSM say equal protection is violated for a homosexual, because he cannot marry the person that he wants to marry. But of course, a heterosexual also cannot marry the person he wants to marry if one of them is already married, they're too closely related, or one of them is too young. Throughout human history, marriage has always been strictly limited to certain types of unions; it has never, in thousands of years of human history, been an unrestricted right.

Gender is just one of the restrictions; if the others don't violate equal protection, then neither does the gender restriction. And if it does violate equal protection... then what's the legal rationale for banning polygamy?

Cat got your tongue? "But my four wives and I really love each other!"

With all restrictions dropped but the declaration that "we love each other," what's to stop gang members from all marrying each other, so that none will be able to testify against another? How do you prevent an entire building full of spinsters marrying the same guy, so each can receive Social Security? How do we prevent one American citizen from marrying five hundred Argentinian women and men to bring them all here as permanent residents?

Marriage needs restrictions: Without them, it's no more special a relationship than a bowling team or union membership.

So you're in favor of banning interracial marriages too, huh?

A ban on racial intermarriage has never been a piller of Western civilization; racism itself (per Dinesh D'Souza's the End of Racism) dates only to the sixteenth century. And most of the miscegenation laws in California were passed from 1901 onward, during the "Progressive Era" -- they were Jimmy Crow Lately laws.

Miscegenation laws were not repealed not by the courts, which never found any equal protection violation; in fact, they found no problem with them at all. It was the people, speaking through their state legislature, who rejected racism in the marriage laws in 1948 (after the Progressives and other socialists made those laws progressively restrictive through 1945).

Why did the legislature repeal those laws? Because society decided that there was no significant difference between the races; the differences are purely cosmetic. Thus, there was no compelling reason why a black man could not marry a white woman, or a white man marry a Hispanic woman.

However, nobody except self-described "queers" (radical "gender-free" advocates who proudly use the term on themselves) believes that there is no significant difference between males and females. In fact, we're discovering new differences every year, including distinctions in thought processes, temperment, and styles of exercising authority.

Unlike marriage between black and white, a marriage between two men or two women is completely different in character from a marriage between a man and a woman.

It has a great effect on child rearing -- the correlation between fatherlessness and violent crime and other antisocial behaviors is admitted by every sociologist -- and even on the behavior of the spouses themselves. When men mix only with other men, or women with other women, all the negative traits of each sex are magnified. But when men marry women, both parties moderate their behavior, and we achieve at least some union between yang and yin.

(As kids who grow up with divorced parents now, having two fathers can be terribly confusing and can also lead to the kids playing one Dad off the other. Fatherlessness and overfathering are both very sub-ideal.)

Finally, experience teaches that cultures that allow polygamy, such as traditional Moslem cultures, end up devaluing women and girls to the point where the papa will kill his own wife or daughter if he thinks (or imagines) she has shamed the family name. It's much, much rarer for a father to kill his teenaged son for such imagined shame, because males are so much more important in polygamous cultures. (They may encourage sons and daughters alike to become suicide bombers, but that is completely different: Radical Moslems consider that to be enhancing the family honor. It's like sending sons off to war. But the father rarely murders his son as punishment for shaming the family.)

Societal survival is a compelling interest

Thus, society does have at least three compelling interests in restricting marriage to one man and one woman: The effect on getting and raising children, moderating behavior of individual men and women, and promoting the full equality of the sexes. And equal protection is not violated, because every resident, regardless of sexual preference, may legally marry anyone he wants, provided both meet society's qualifications anent age, sex, number, family relationship, and of course willingness.

If we ever decide to change any of those restrictions, it must come from the people themselves... via the legislature or directly by citizen initiative. The courts should never drive society willy nilly towards the utopian leanings of the judges. That is the difference between leftists, who favor totalitarian, top-down rule by "experts" in all areas of life (from economics to religion to marriage)... and those of us on the right, who prefer individualism, Capitalism, and democracy, where the women and men in society get to decide for themselves, through the ballot box, what axioms define society.

For a perfect example, let me explain why I absolutely support Lawrence v. Texas (the U.S. Supreme Court case that struck down anti-"sodomy" laws across the nation) -- yet I oppose with equal fervor Goodridge v. the Department of Public Health, the ruling by the Supreme Judicial Court of Massachusetts forcing the state legislature to legitimize SSM.

Simply put, Lawrence is individualistic and democratic: It does not require you to accept gay relationships as the equal of heterosexual relationships -- it just prevents you from throwing them in jail for it. It's one aspect of "the right to be let alone." Thus, Lawrence is individualist and conservative... modern conservatism has always recognized freedom of conscience in principle, even if some individual choices carry enough "ick" factor to tempt conservatives to make an unwarranted exception.

But Goodridge is totalitarian and leftist: It requires you to treat SSM exactly the same as mixed-sex marriage, and to hell with your deeply held religious beliefs. That is not the role of the courts.

SSM supporters twist words to impose a total, top-down transformation of society to fit the utopian ideology of the Left, using the phrase "equal protection of the laws" as a weapon to overthrow the democratic process -- quite literally, in the case of California and our Proposition 22. So on to question two...

What's so bad about SSM anyway?

This section will be briefer than it could be -- I could write an entire book! -- because I'll just sketch the argument; if you want more specifics, type "same-sex marriage" into the search box in the right sidebar and read my earlier posts.

Simply put, here is the syllogism on which I operate:

1. Our society ultimately rests on a small number of irreducible axioms: inalienable rights, government by consent of the governed, etc.
2. One leg of the stool of Western civilization is the marriage of one male to one female. This has been the definition in our society going back thousands of years. It encourages the interaction of male and female and the civilization of boys, female equality and women's rights, and the rights of children. It has dramatically shaped our culture.
3. But not irreversibly shaped; if you knock out one leg of the stool, it may still appear to stand; but it becomes ricketier, less stable, and more prone to topple over when hit by something external... such as militant Islamism, to pull a random example out of my hat.
4. While many people (especially the young) are eager to "change everything," a certain level of stability is vital to society, both culturally and legally. Our experience of societies that have a different set of axioms -- such as the Moslem and African cultures -- warns that treasured rights and privileges that we take for granted would not survive such ham-fisted tampering.
5. So for God's sake, don't do it!

Here's what's so bad, wise guy...

The law of unintended consequences applies in full force here. For example, the easier we make it for any group of two or more people to be legally considered "married," the less special is the marital relationship; as it becomes less special, it attracts fewer people. Fewer marriages means fewer children, hence a waning, dying culture (cf. Northern Europe, esp. Scandinavia).

Fewer marriages also mean kids who are born are more likely to grow up in fatherless homes. Looking at America's black population, we see an extraordinary rate of out of wedlock births (69.3% of all births, compared to 31.7% of white babies - Table 14) and fatherless households (60%, compared to 22% for white children). If we compare that disparity to the disparity in violent-crime offender rates between blacks and whites (blacks were nearly three times times as likely, 2.8:1, to commit violent crime in 2005 as whites; Sourcebook of Criminal Justice Statistics, 2000 Census), we see a strong correlation between out of wedlock birth and fatherlessness on the one hand and the commission of violent crime on the other. This is hardly surprising; a strong and law-abiding male role model teaches boys how to resolve problems peacefully and legally.

That correlation should tell us that the very last thing we should be doing is discouraging heterosexuals of any race from getting married: Raising kids in an intact, married family makes them much less likely to become either violent criminals or the victims of violent criminals. But diminishing the "sacred specialness" of marriage by opening it up to any and all groups of people who declare "love" for each other does exactly that: If marriage means nothing, then why get married?

The West is the best

Our Western culture is unique in many ways: It's the strongest and most economically successful culture in human history; it's the freest and most respectful of individual rights; and it's also the most conservative culture on the planet, in the sense of conserving the virtues and mores of the classical liberalism of the nineteenth century -- derived from Enlightenment philosophers such as John Locke and first enshrined into law by the American Founding Fathers at the tail end of the eighteenth century.

Asian cultures (excepting Japan, which is completely Western) are mostly radical socialist cultures (Socialism includes both Marxist and fascist versions), still vainly trying to transform the world and create the New Socialist Man. And Moslem cultures are too often reactionary, trying to recreate the days of the Prophet -- more than thirteen centuries ago.

The Western culture converted to what we now call "traditional marriage" more than two thousand years ago; traditional African and ancestral American cultures never enforced "traditional marriage;" the socialist cultures of the East rejected spiritual unions (marriage) in favor of civil partnerships many decades ago; and traditional misogynist Islamic law still treats women like cattle.

Why on earth would any sane person want to monkey with the Western marriage model?

Jonah swallows the whale

Finally, I love this very appropos passage from Jonah Goldberg's new masterpiece, Liberal Fascism (pp. 133-4), which perfectly captures those radical activists trying to transform America into their own utopian vision:

Sadly, that is exactly what's going on here and now; and our enemies without and within call it "historically inevitable" that they will succeed. If so, fellow right-wingers, then it's our bounden duty, as William F. Buckley, jr. wrote in the National Review mission statement in 1955, to "stand athwart history, yelling Stop."

Ergo --

So to all those leftists who are screaming, arguing, threatening, cajoling, extorting, commanding, and suing to cram same-sex marriage down Californians' throats, and most particularly to the California Supreme Court...

Hatched by Dafydd on this day, May 15, 2008, at the time of 2:55 PM | Comments (19) | TrackBack

August 31, 2007

The Insanity - and Inanity - of Judge-Ordered Same-Sex Marriage - UPDATED

UPDATE: See below.

Today, a lowly, puny county judge in Iowa gave the finger to the entire Iowa state legislature, overturned a nine-year old Iowa law, went against the opinion of a majority of Iowans, and set up a confrontation that can only end one way: a state constitutional amendment.

Why? Because he felt sorry for gays.

Dennis Prager is fond of remarking that compassion is one of the greatest virtues -- when practiced by individuals. But when practiced by government, compassion is more often one of the vilest vices. That is because the way governments practice "compassion" is to compassionate Paul by dissing Peter... in this case, telling everyone involved in the difficult decision of which relationships should be recognized as "marriage" that they can all go to hell, because Judge Robert Hanson's heart bled for a handful of people who sued to be able to wed same-sex partners.

Assuming AP is more or less accurate:

Hanson ruled that the state law allowing marriage only between a man and a woman violates the constitutional rights of due process and equal protection.

"Couples, such as plaintiffs, who are otherwise qualified to marry one another may not be denied licenses to marry or certificates of marriage or in any other way prevented from entering into a civil marriage ... by reason of the fact that both person comprising such a couple are of the same sex," he said.

Naturally, Hanson is wildly inconsistent: He feels "compassion" for gays who cannot wed, but he has no compassion for similarly situated siblings or cousins, nor for threesomes who all want to wed each other. His "ick" factor rises to overwhelm his compassion in those cases... but not in the case before him.

What was Hanson's argument? That couples who obey marriage rules 1 through 3 are allowed to violate rule 4 and still get married. Of course, the next judge might say that couples who obey rules 1, 2, and 4 can get married, even if they violate 3; everybody is entitled to his opinion, right?

But when those opinions become law simply because the opinion-monger wears a robe to work, you have a prescription for disaster: Judge Hanson says if you're not too closely related and you're only a couple, then you can blow off that bit about being of opposite sexes. But the next fellow says No... if you're only a couple and you're of opposite sexes, then you can get married even if you're brother and sister. Why not? What is the difference?

The end state of this chain reaction is that all rules get thrown out, exploding the very concept of marriage: Any group of people who say "we're married" must be considered married, with all the rights and privileges pertaining thereto... allowing, for example, all the members of a gang to "marry" each other in a big group ceremony; and thereafter, none can ever be called as a witness against any other, even if he wants to testify. It's the Law of Unintended Consequences in action.

Unintended consequences is why such core definitions of a civilization cannot be resolved by individual judges substituting their own vision for an electoral process that gives everyone a say: It's much more difficult to change so basic an institution as marriage if you must do so by a majority vote of the people, rather than a majority vote among the neurons of one, solitary bench-warmer.

Did the judge consider the damage to the state of Iowa by expanding the definition of marriage to include two men or two women? Did he consider the possibility of a slippery slope? Did he consider how chipping merrily away at one of the legs of Western Civilization might cause the entire ediface to collapse?

Who knows? He's just one guy. He might have simply looked into the big, brown eyes of a plaintiff, a tear wells up, and the judge is immediately carried away by the desire to bring those particular two men together, and damn the larger consequences! The point is, we'll never know -- because it's only one guy. There is no "paper trail" of one guy's thought processes, as there is for the lengthy debate and eventual vote of a legislature or a citizen initiative.

The arrogance of Judge Hanson is breathtakingly colossal: He says, in essence, that he, the Anointed with the Vision (as Thomas Sowell puts it), is wiser than the combined wisdom of all the state legislators, the voters who elected them, and all previous judges who never found a "right" to same-sex marriage (or any other specific definition of marriage) in a state constitution that doubtless doesn't even mention such a definition.

The only good thing about this weepy, thoughtless ruling is that it will surely lead to a quick constitutional amendment in the state, an amendment that I suspect will be strongly supported among both Democrat and Republican Iowans:

House Minority Leader Christopher Rants, R-Sioux City, said the ruling illustrates the need for a state constitutional amendment banning gay marriage.

"I can't believe this is happening in Iowa," he said. "I guarantee you there will be a vote on this issue come January," when the Legislature convenes.

I swear, I'm beginning to believe that living in a state with judges is hazardous to your culture.

UPDATE 3:45 pm: Same-sex marriage was legal in Iowa -- for less than one day; at that point, Judge Hanson acceded to a motion to stay his ruling filed by County attorney John Sarcone.

However, in that one day (and just two hours before the stay of execution), one couple managed to apply for a license, get a license, and actually get married, despite earlier reporting that it would take three days to receive the license:

Two men sealed the state's first legal same-sex marriage with a kiss Friday morning, less than 24 hours after a judge threw out Iowa's ban on gay marriage and about two hours before he put that ruling on hold.

It was a narrow window of opportunity.

And how did they buck the three-day waiting period? (I was tempted to go all gun-control on you and call it a "three day cooling-off period," but that would be snarky.) Easy: They paid a $5 gratuity:

The marriage license approval process normally takes three business days, but Fritz and McQuillan took advantage of a loophole that allows couples to skip the waiting period if they pay a $5 fee and get a judge to sign a waiver.

Friday morning, the Rev. Mark Stringer declared the two legally married in a wedding on [the] Unitarian minister's front lawn in Des Moines.

So let's see what happens in state appellate court and with the Iowa Supreme Court. But in order to forestall this sort of ruling occurring over and over again, whenever some county judge gets a wild hair, Iowans need to start the ball roaming on a state constitutional amendment.

I'm not sure whether that's done by the state legislature or by the voters themselves by petition... but whoever's in charge, get cracking.

Hatched by Dafydd on this day, August 31, 2007, at the time of 5:20 AM | Comments (8) | TrackBack

June 14, 2007

Brokeback Legislature

The Massachusetts constitutional convention has successfully prevented a bill enshrining traditional marriage in the state constitution from even reaching the voters... and the legislators are just busting with pride:

Massachusetts lawmakers on Thursday blocked a proposed constitutional amendment banning gay marriage from reaching voters, a stunning victory for gay marriage advocates and a devastating blow to efforts to reverse a historic 2003 court ruling legalizing same-sex marriage.

The 45-151 vote means Massachusetts remains the only state in the nation to allow same-sex couples to marry. The question needed the approval of 50 of 200 lawmakers in consecutive sessions to advance to the 2008 ballot. It got the first approval at the end of last session in January with 62 votes....

As the tally was announced, the halls of the Statehouse erupted in cheers and applause from supporters of gay marriage gathered outside the House chambers.

So upon sober reflection, the Massachusetts pols decided not to allow voters to confuse matters by participating in the discussion. Am I alone in concluding that the massive lobbying effort that "changed the minds" of 17 members indicates that internal polling showed that the bill would have passed, had they allowed a vote?

I reason that if polling showed the bill going down to defeat -- why try to desperately to prevent a vote? Why not allow Massachusetts to become the only state in the United States whose citizenry had voted for same-sex marriage?

The governor is leaping and capering about, clapping his elfin, little hands in glee:

The vote is also a victory for the state's Democratic leadership, including Gov. Deval Patrick, a vocal supporter of gay marriage, who pressed lawmakers up until the final moments to block the measure.

House Speaker Salvatore DiMasi, D-Boston and Murray, D-Plymouth, also support gay marriage and worked to change votes - arguing the rights of a minority group should not be put to a popular vote.

Arguing that the citizens of Massachusetts should not be allowed to determine what constitutes "marriage" in their state. That job properly belongs to four of the seven never-elected justices on the Massachusetts Supreme Judicial Court.

If you live in the Bay State, now you know how highly your legislature values your input. Sleep tight.

Hatched by Dafydd on this day, June 14, 2007, at the time of 10:57 PM | Comments (2) | TrackBack

January 3, 2007

Boston Two-Step

The Massachusetts state legislature (a.k.a, the Massachusetts General Court; and isn't that a pompous title?), sitting as a constitutional convention (I think), has finally been shamed into allowing the people to vote on whether to restore the traditional definition of marriage... well, almost.

I must report, in some amazement, that the scolding the legislature took from the Supreme Judicial Court of Massachusetts seems to have done the trick, even though the Court insisted there was nothing they could do to force the lege to act.

Here is what has happened: A citizen initiative was circulated to the people, and 170,000 valid signatures were collected; that means the traditionalists needed but 25% of the legislature in both houses -- in two distinct legislative sessions -- to put the initiative constitutional amendment on the 2008 ballot (primary or general, I don't know). The initiative would ban future same-sex or polyamorous marriages but leave intact the existing 8,000-odd marriages conducted while it was legal. (If it passes, there will be a rush of gays to get "married" and be grandfathered.)

Judging from the way the articles are written (badly), it appears as if, when they're meeting in constitutional convention mode, all you need is 25% of the combined total of the two chambers; there are 40 senators and 160 representatives, so the initiative needed 50 total votes to be sent along:

The amendment would need to be approved by 50 member [sic] of the current Legislature and 50 members of the new Legislature before going to voters on the 2008 ballot. On Tuesday, 61 lawmakers backed moving the measure forward, compared to 132 opposed.

The 61 votes moves the initiative one step closer to being sent to the people; this seems to have infuriated some of the more liberal members (recalling that in Massachusetts, the "more liberal members" call each other "comrade") as well as incoming Gov. Deval Patrick, who replaces Mitt Romney. In a different story, this one from Reuters, Patrick eloquently expressed what he thinks of allowing voters in Massachusetts, rather than the Supreme Judicial Court (an actual court this time, not a legislature), to decide what the state will call "marriage":

"I believe a vote to advance this question to the 2008 ballot is irresponsible and wrong," Patrick, who will be sworn in this week, said in a statement before the vote. "It would do nothing more than condemn us all to more years of debate and expense on a matter that is legally and practically settled."

By "legally and practically settled," Patrick of course means that the Massachusetts courts ruled in favor of his position. The civitas has never been allowed to vote on it, and Patrick jolly well vows to make sure they never do.

However, it appears not to be quite "settled" yet, as it's likely that this bill will, in fact, head to the people... notwithstanding a vote two hours later to "reconsider" the earlier vote. As 75 legislators voted against the call to reconsider, it's hard to see how a dozen of the original 61 votes would change their minds on the second calling of that vote, which should be Thursday, I believe. Or for that matter on the second reading of the question later this year.

Late-breaking update: according to AP, the legislature has already held the reconsideration vote... and this time, 62 members voted to send it on to the next phase -- one more than the first time (probably a member piqued at being delayed heading out to Cape Cod for a few days). From AP:

Arline Isaacson, co-chairwoman of the Massachusetts Gay and Lesbian Political Caucus, vowed to continue the fight into the next session to ensure the question is not put on a statewide ballot.

"We have no choice. We're talking about our lives," Isaacson said. But she acknowledged: "It's a huge task. We might not be able to do it."

Deval Patrick -- the Democratic wing of the Democratic Party -- and the co-charwoman of the Massachusetts Gay and Lesbian Political Caucus and Marching Society (why they're asking "the help," I don't know)... I detect a pattern here: everyone on the Left is truly and deeply concerned that, if this initiative actually goes to the people, the people will restore the traditional definition of marriage.

Why else would everyone supporting same-sex marriage be so panic-stricken at the thought of the people voting? They seem to know just how this will all turn out, once the vox populi speaks.

Patrick or no Patrick (alas, we haven't the option to put Romney back in), the initiative seems destined to be put to a vote by the good people of this commonwealth ("state" isn't good enough for the great Massachusetts Great and General Court).

Unlike the Massachusetts Left, I have no crystal ball; but I certainly put a lot more faith in the citizens of Massachusetts than I do in the Democratic super-dominated legislature.

Hatched by Dafydd on this day, January 3, 2007, at the time of 2:56 AM | Comments (6) | TrackBack

December 27, 2006

Court to Lege: You're Derelict In Your Duty - But Who Are We to Judge?

The Supreme Judicial Court in Massachusetts has ruled that the state legislature -- which voted to recess rather than accept a petition for a constitutional amendment to protect traditional marriage -- violated its duty by not voting on the petition, which would easily have gotten the 25% support it needed to be submitted to the people. In fact, the court "rebuked the Legislature for its 'indifference to, or defiance of, its constitutional duties.'"

But then, they went on to say they can't do anything about it:

Responding to a lawsuit spearheaded by Massachusetts Gov. Mitt Romney, the state's Supreme Judicial Court said it could not force another branch of government to act after lawmakers recessed last month without deciding to put the gay marriage issue on a 2008 statewide ballot.

We agree with this decision. I mean, you have to draw the line somewhere! True, this whole imbroglio began in 2003, when the court did exactly the opposite in Goodridge v. Dept. of Public Health, 798 N.E.2d 941 (Mass. 2003)... force the legislature to act to allow same-sex marriage in the first place:

On the legal aspect, instead of creating a new fundamental right to marry, or more accurately the right to choose to marry, the court held that the State does not have a rational basis to deny same-sex couples from marriage on the ground of due process and equal protection. The court gave the legislature 180 days to change the law to rectify the situation.

But by golly, don't we all recognize that two wrongs don't make a right? (Although three rights do make a left.)

Just because the 4-3 majority in Goodridge (which supported same-sex marriage) was willing to stretch a point to order the legislature to comply with the Massachusetts constitution to create same-sex marriage, while those same four justices eagerly joined the three dissenters in saying the court didn't have the authority to order the legislature to comply with the constitution and allow the people to overturn same-sex marriage -- that's no reason to leap to the conclusion that there was anything political about the decision. Don't be such a cynic!

I admit that the distinction that allows the court to order the legislature in 2003 but prevents the court from ordering it in 2006 is too subtle for my untrained skull full of mush: the ratiocination is so deep that only a lawyer can understand it. But what do I know? I am only an egg.

From here, I suspect the spoilsport plaintiffs (including Massachusetts Gov. Mitt Romney, a presidential aspirant) will probably make a federal case out of it. We'll see whether three wrongs will finally make a right. (How many does it take, anyway?)

In the meanwhile, other states could begin using the Massachusetts technique to deal with irritating citizens who insist upon butting into the lawmaking process: the next time Ward Connerly gathers enough signatures on a petition to eliminate state-sponsored racism, the legislature should simply adjourn without looking at it. So simple!

Why didn't we think of it before?

Hatched by Dafydd on this day, December 27, 2006, at the time of 6:34 PM | Comments (3) | TrackBack

November 23, 2006

Rum, Sodomy, and the Lash: Response to Captain Ed

In a Tuesday post, Captain Ed argues -- unconvincingly -- that the Supreme Court's decision in Lawrence v. Texas, which struck down all "anti-sodomy" laws nationwide, necessarily leads to the legalization of polygamy and same-sex marriage.

But his argument founders on a fundamental misunderstanding of the distinction between the two cases.

Here is the captain's argument on a nutshell:

Quite a while back (two years ago), I wrote that the Supreme Court decision in Lawrence v Texas would open a Pandora's box about all sorts of cultural norms currently supported by statute throughout the United States. At the time, Jonathan Turley had written about the impending sentencing of Tom Green for polygamy, and opposed it on the basis of personal choice. I wrote:

I don't see anything particularly wrong with gay marriage, as long as a majority of voters approve it. I also think that the Texas sodomy laws were about as stupid as you could have found in any penal code. ... However, the Court used a sledgehammer when a flyswatter would have prevailed, and the consequences of their decision has led -- logically -- to the appeal of all anti-polygamy statutes. If in fact the Court applies the same thinking to polygamy as it did to the sodomy statutes, then they have no choice but to free Green and declare all anti-polygamy statutes null and void....

Not everything that transpires between consenting adults is legal or should be legal, let alone given Constitutional protection. But that's where the SCOTUS has left us. They should take the opportunity to reverse their precedent and acknowledge the error they made in Lawrence, before Constitutionally guaranteed prostitution and adult incest come next.

First, we must set some ground rules:

1. Just because lawyers cite Lawrence (or any other decision) in a challenge to laws banning polygamy doesn't mean there is a logical inference: lawyers will cite anything they can imagine, hoping something sticks.
2. Notwithstanding (1), Professor Turley did not, in fact, cite Lawrence for that point.
3. Lawrence did not hold that "everything that transpires between consenting adults is legal or should be legal;" it didn't overturn the drug laws, for example, so it's still illegal for consenting adults to transact with each other for crack cocaine. Lawrence only held that the right to privacy included a right of consenting adults to have sex without fear of being prosecuted by Peeping-Tom cops under sodomy laws.
4. The mere fact that a liberty can be abused is not grounds for eliminating the liberty.

But once we admit all that, it's clear that Captain Ed in fact makes no argument at all either in the original post from 2004 or the more recent post that mostly recaps the first. He says, in effect, that since the Washington Post cited Lawrence in its attack on laws defining marriage as one man, one woman, therefore Lawrence must be overturned.

This is logical nonsense. If a doofus lawyer cited freedom of speech as a defense to his client having ordered a hit man to kill someone, that doesn't mean we must immediately repeal freedom of speech.

In fact, even if a doofus lawyer working for a newspaper cited freedom of speech as a defense against a charge under the espionage act of publishing classified national-security documents -- and even if the doofus Supreme Court agreed and struck down the act -- the problem is still not that we allow freedom of speech. The problem is that the Court made the wrong decision on the espionage case; and the solution is for a later Court to overturn that decision, not decisions protecting actual freedom of speech.

So with Lawrence. The Court made no ruling whatsoever on same-sex marriage, consanguineous marriage, or polyamory. Lawrence applied only to actions, finding a liberty right (under privacy) to engage in certain actions. But demanding approval of a license for legal "marriage" is not an act of privacy, or any act. It is a demand for social affirmation in the form of a legal document ratifying and celebrating the union.

It is a question of basic liberty to say the government cannot regulate sexual contact between adults; but legal marriage necessarily inserts the government, because by definition, legally approving a marriage is a public act by the government -- not an act by the spouses or a priest, rabbi, or minister. The government certainly has the authority to decide whether it will take that action, declaring two (or more) people to be legally married.

It's the difference between saying that I have freedom of speech and saying that I have the right to demand that something I write be published in a State Department document.

This is how I can simultaneously hold two apparently opposite positions without losing consistency:

• I absolutely support the Court's decision in Lawrence v. Texas that states cannot outlaw various kinds of sex between consenting adults on the grounds that they're "icky;" there is a liberty interest here that cannot be infringed without a compelling state need, which doesn't exist;
• Yet I absolutely support privileging the traditional definition of marriage, and in fact might even support making divorce significantly harder (at least when the marriage has issue). There is no constitutional "liberty interest" that forces states to allow same-sex marriage, polyamorous marriage, consanguineous marriage, or marriage involving minors... though of course states likewise have the authority to allow any of these if they lawfully decide to do so.

I wonder if anyone who believes, as Captain Ed does, that the Lawrence decision requires the Court to force same-sex marriage and polygamy on the states will take up the cudgel and show why private liberty compels state approval of every imaginable way of exercising that liberty?

Hatched by Dafydd on this day, November 23, 2006, at the time of 5:23 AM | Comments (9) | TrackBack

October 26, 2006

"De Minimising" De Marriage

A commenter in an earlier post, arguing in favor of same-sex marriage (SSM) -- or at least against motions to prevent it, such as initiative constitutional amendments -- made the following argument, which is interesting and deserves response:

De minimis non curat lex. The law does not care about trifles. Massachusetts had less than 7,000 same-sex marriages in the first year, about 2/3 of them between women and mostly between people over 35. Massachusetts had less than 7,000 same-sex marriages in the first year, about 2/3 of them between women and mostly between people over 35. Even if that occurred in every state in te Union it would be statistically meaningless compared to, for example, the number of illegitimate children.

The rejoinder obvious: there are many things that happen rarely but still concern us greatly, including AIDS deaths, eminent-domain seizures for private purposes, and a soldier being awarded a Medal of Honor. Whether something is a "trifle" is not determined by the raw number of people directly involved, but the larger effect on society. So let's focus on the actual effect that widespread SSM would have on Western culture, let alone our country.

There is a rhetorical trick often used to dismiss, without response, an argument warning against some practice: one takes a bunch of connected events in isolation, arguing that each one -- by itself -- either isn't that bad or isn't very likely... while ignoring that the danger is in the concatenation of those events, not any specific one of them; and each makes the next more likely, so a static, discrete analysis is doubly wrongheaded. I call this intellectually dishonest trick rhetorical autism.

If there were some cosmic guarantee that opening up marriage to same-sex couples would never lead to any more changes, then I wouldn't particularly care. My goal is to insure the survival of marriage as a unique institution, one of the cornerstones of Western culture; and in this hypothetical, SSM would indeed be "de minimis."

But nobody can make any such guarantee; in fact, all the evidence points the other direction. The moment the courts legally dispense with the idea that marriage is a special, unique relationship between a man and a woman, expanding the definition of marriage to include other forms of relationship, then it becomes nothing but a mere legal contract between any group of people.

For example, a federal lawsuit is currently working its way through the courts (it's being considered by the Tenth Circus, I believe) that would, if the plaintiffs succeed, force states under that jurisdiction to allow polygamous marriage. They argue using the constitutional right of "privacy" (which I actually support), drawing upon the Court's decision in Lawrence v. Texas (which I also support); the dispositive response, of course, is that marriage is not a "private act" but a public acclamation.

But they could also argue, and eventually some polygamist will, that polygamy is a right conferred by the 14th Amendment's requirement that "No state shall... deny to any person within its jurisdiction the equal protection of the laws." They will argue that men who love two or more women are as much a group that needs protection as men who love other men or women who love other women.

Logically, if the argument is that any two people who love each other (or are "committed") have a "fundamental right to marry," as held by the 3 dissenters (just one shy of a majority!) in Lewis, the New Jersey case, then how can one argue, with a straight face, that three committed people don't have that same right?

As one polygamist puts it in the article:

His argument: if Heather can have two mommies, she should also be able to have two mommies and a daddy.

An opinion piece that argues against a causal link between legalizing SSM and legalizing polygamy is this by Marci Hamilton:

Shortly after Lawrence was decided, and also famously, the Massachusetts Supreme Judicial Court - in Goodridge v. Dep't of Public Health -- held that it was a violation of the state constitution's equal protection guarantees to prohibit same-sex marriages. Federal and state equal protection guarantees, however, will not aid the polygamists. Anti-polygamy statutes draw the line at the number of spouses, not their characteristics or status. There is long-settled precedent that limiting the number of spouses does not violate any constitutional guarantee, nor should it.

While I applaud Hamilton's defense of traditional marriage, I think she is living in denial if she thinks that a court willing to accept the "equal protection" argument to require SSM would not also seriously consider the same argument to require polygamy. After all, we also had "long-settled precedent" that limiting marriage to opposite sex couples "does not violate any constitutional guarantee." That didn't stop the Massachusetts Supreme Judicial Court from overturning those precedents in Goodridge.

The underlying argument was this:

1. People cannot control to whom they're attracted;
2. Thus, love arises from an uncontrollable characteristic that is basic to a person's identity;
3. Therefore, it's just like race -- and the state cannot restrict marriage to opposite-sex couples.

The same structure can be used to declare that certain men have an "uncontrollable characteristic that is basic to their identity" that causes them to love more than one woman at the same time. A leftist court willing to accept the former may very well accept the latter; logic and rationality have nothing to do with it... politics trumps all.

And a more direct challenge: if any two committed people have a fundamental right to marry -- or even a 14th Amendment "equal protection" right -- then why can't a person marry his own sibling? Hamilton's argument doesn't even apply here, because the prohibition of incestuous marriage absolutely draws the line at the "characteristics or status" of those wanting to marry, not their number.

And if we allow SSM, polygamy, and consanguineous marriage, then we automatically have group marriage as well; and at that point, marriage, as a special institution, will cease to exist. Rather than a marriage, a union of opposites for the good of society, all we would have left is a legal construct between some number of people of any combination of genders... that is, marriage becomes nothing more than an LLC.

Given, for sake of argument, that SSM might lead to the end of marriage... why does that matter? Why should we have legal marriage at all? Isn't that just "privileging" one religious viewpoint above others, or above secularism? Many on the Left argue this point in all seriousness (which is why I believe that legalizing SSM will lead to serious litigation to overturn laws against polygamy and consanguineous marriage).

Society has a rational interest in preventing the further deterioration of traditional marriage, and even in reversing some of the deterioration that has already occurred (making divorce too easy an option, for example). All of the problems associated with modern marriage (cheating, abuse, neglect, breakup, serial meaningless marriages, and children being raised in a broken home) are tremendously compounded in every form of relationship other than traditional marriage.

I have argued many times before, citing evidence, that every child benefits most from having both a (male) father and a (female) mother; neither sex is expendable. Not every child has such a family; but there is no reason to increase that number by a willful act of defiance. If "committed same-sex unions" are to be treated exactly the same as marriage, however, that is exactly what will happen: if married families are not privileged in custody and adoption cases, then many more "Heathers" and "Hanks" will be adopted out, or sent into the custody of, families with no daddy.

After raising children, the second most important virtue of traditional marriage is that it brings about equality between the sexes. No other form of relationship does as much to promote sexual equality -- which means equality of women, since there has never been a culture in history where women had more rights than men (no, there never was a "prehistoric pan-European matriarchy").

Polygamy especially leads to the degradation of women, as we see in Moslem nations (and animist African nations) that allow it; but gay relationships damage such equality as well, because they isolate the sexes. Equality of women depends upon men, because men are on average physically stronger, more aggressive, dynamic, and violent; this doesn't make them better, but it does make them better able to seize control absent moral restraint.

Men must be persuaded of the moral rightness of equality; but when men are separated from women, they tend instead to become more misogynist. And women separated from men tend to be poor, because typically neither partner has the drive for success necessary to thrive economically. There are certainly exceptions, sometimes very big ones: Ellen DeGeneres and Anne Heche, for example. But that is the way to bet it, and you can even give odds.

Patterico is correct that the most invidious problem here is the abandonment of democracy in favor of judicial dictatorship; he opposes decisions like Lewis and Goodridge, even though he has no objection to SSM itself and has said he would vote for it if offered in a referendum. But I argue that there are sound and compelling reasons for society to reject SSM even when presented as a vote.

Traditional marriage long predates our ideas of individual liberty, moral equality among the races and sexes, modern capitalism ("trade" has always existed, but not capitalism), governance by the consent of the governed, and all the other elements of modern Western liberal democracy.

There is good reason to believe the relationship is causal: that all of these things flow from the various columns of the foundation of Western civilization... including traditional marriage, which pressures two very different kinds of people, a man and a woman, to join together to make decisions: in a polygamous marriage, if you're mad at one wife (or one husband in a polyandrous marriage), you can just "solve" that problem by cutting that person out of your life, even without divorce, and turning to another spouse within the marriage. But in monogamy, you're stuck with the one wife -- so you'd better learn to live with her.

(Two of the other load-bearing columns are ethical monotheism and universal justice, both of which Western civilization got from the Jews.)

Polygamy is much more akin to monarchy: with four or five or twelve wives but only one husband, no individual wife is worth much; the man makes all decisions... and if a wife doesn't like it, she can live isolated from the harem (but still trapped in the marriage), and the rest of the harem will get along just fine without her. Group relationships with multiple males and females inevitably break into warring cliques, as the "Live the Dream" crowd has found out.

I am absolutely unwilling to idly kick over the foundations of Western civilization, just to see what might happen. The trivial benefits -- if they exist at all -- are so "de minimis" themselves that they cannot possibly justify overturning the ancient institution of marriage.

Hatched by Dafydd on this day, October 26, 2006, at the time of 5:48 PM | Comments (19) | TrackBack

October 25, 2006

Will They Or Won't They: Pyrrhic Days Are Here Again

Well, at least they didn't go "Full Monty" on us.

The New Jersey Supreme Court stopped short of declaring "a fundamental right to same-sex marriage" in the state, but not so subtlely hinted that the legislators had six months to do one of two things:

• Institute full-blown same-sex marriage in New Jersey;
• Create civil unions so sweeping and all-encompassing that they may as well be marriage -- in everything but name.

There is barely any difference between what the court ruled and going whole hog (can I think of any more metaphorical phrases?), as they did in Massachusetts in the case Goodridge v. Department of Public Health. Like the Massachusetts case, the New Jersey decision was 4-3, as divided as possible, to create a new right ex nihilio (whatever they may claim): the right to civil unions that perfectly mimic marriage.

However, in the Jersey case -- Mark Lewis and Dennis Winslow, et al. v. Gwendolyn L. Harris, etc., et al. (A-68-05) -- the three dissenters (Chief Justice Deborah Portiz, and Justices Virginia Long and James Zazzali, all appointed by "Republican" Gov. Christine Todd Whitman) only dissented in that they wanted the court to force full-blown same-sex marriage on the state. The Jersey decision is thus actually more left-liberal than Goodridge, because the three dissenters in Massachusetts (Justices Cordy, Spina, and Sosman) actually held that such a decision was properly left to the legislature, not the courts.

Massachusetts Gov. (and likely 2008 presidential candidate) Mitt Romney's response to Goodridge applies equally well to Lewis:

"Like me, the great majority of Americans wish both to preserve the traditional definition of marriage and to oppose bias and intolerance directed towards gays and lesbians," Romney began by way of preface.

Then he asked the question we should all be asking: "Given the decision of the Massachusetts Supreme Judicial Court. . . Should we abandon marriage as we know it and as it was known by the framers of our Constitution? Has America been wrong about marriage for 200 plus years? Were generations that spanned thousands of years from all the civilizations of the world wrong about marriage? Are the philosophies and teachings of all the world's major religions simply wrong? Or is it more likely that four people among the seven that sat in a court in Massachusetts have erred? I believe that is the case."

Then Mitt Romney put his finger on where the error comes from: the limited perspectives of lawyers and judges. "They viewed marriage as an institution principally designed for adults. Adults are who they saw. Adults stood before them in the courtroom. And so they thought of adult rights, equal rights for adults. If heterosexual adults can marry, then homosexual adults must also marry to have equal rights."

But, he went on, marriage is not solely for adults. "Marriage is also for children. In fact, marriage is principally for the nurturing and development of children. The children of America have the right to have a father and a mother."

(I normally don't use such a long quotation from another source; but in this case, Maggie Gallagher, of the Institute for Marriage and Public Policy, is simply quoting from a speech by Gov. Romney, so she has no cause to complain. Now, if Mitt Romney calls and yells at me, I'll have no defense at all!)

In the interests of fairness, and so you won't think she does nothing but quote, here is Gallagher speaking for herself:

The result [of Goodridge] is not neutrality but the active promotion of a new unisex ideal, in which the distinctive features of opposite-sex relations will be submerged, marginalized, cast to one side, and redefined as discrimination in order to protect the new court-ordered public moral standard of the equality of same-sex and opposite-sex couples.

Even if there is no process for "citizen initiative" in the state of New Jersey, the legislature itself is certainly empowered to propose changes to the New Jersey constitution (by a 60% supermajority, or by majority vote in two consecutive years); which means a third response to Lewis is to send to the voters a constitutional provision to declare that marriage shall be limited to a man and a woman, that there shall be no "quasi-marriage" civil unions, and to leave it at that.

I am not one of those who would be satisfied by having marriage by another name for same-sex couples, or for groups of more than two, or for brother-sister relationships. I totally oppose civil unions, because experience teaches me that the moment a "civil union" exists, the courts will declare it must be exactly equal to marriage itself. But the whole point is that marriage is a unique institution and should be privileged above all others: that is one of the foundations of liberal Western democracy, along with individual liberty and capitalism.

What are the odds that the New Jersey legislature will propose such a constitutional amendment? I confess I have no idea. The Assembly is dominated by the Democrats (49 to 31), but the state Senate is closely divided, with a slim Democratic majority of 22 to 18. But that tells us little, because many Democrats are sane on this subject and oppose SSM.

If all the Republicans voted for such an amendment (I don't even know if that is likely), it could be sent directly to the voters in a single session with as few as 6 Democratic votes in the Senate (27% of the caucus) and 17 in the Assembly (35% of the Democratic caucus). Alternatively, by as few as 3 Democrats in the Senate (14%) and 10 in the Assembly (20%) in two successive years would also work.

So how about it, New Jersey? Care to step up to the plate and defend Western civilization as we know it?

Hatched by Dafydd on this day, October 25, 2006, at the time of 3:41 PM | Comments (11) | TrackBack

Will They Or Won't They?

Only the hairdresser knows for sure...

As I write this, the New Jersey Supreme Court has not yet issued its ruling -- expected today -- on whether or not the courts will cram same-sex marriage down Jerseyites' throats. Doesn't anyone else find it ironical that the only way same-sex marriage (SSM) "wins" is when it's foisted upon us, against out wills, by a bunch of guys wearing dresses?

New Jersey could become the nation's gay wedding chapel should the state's highest court rule in favor of same-sex marriages, adversaries on the issue agree.

The New Jersey Supreme Court is poised to release its highly anticipated decision Wednesday in a case brought by seven gay couples who say the state constitution allows them to marry, said Winnie Comfort [see here now, enough of that!], a spokeswoman for the state judiciary.

The entire New Jersey Supreme Court -- which used to be called the Court of Errors and Appeals, until somebody noticed -- was appointed by ersatz Republican Gov. Christine Todd Whitman (before she became the head of the Environmental Protection Agency and it went to her head), and by Gov. Jim McGreevey (and we all know how well that turned out). If the appointees reflect the appointers, we can expect it now comprises seven bisexual adulterers who wring their hands over global whaling.

It's hard to imagine such a court not leaping (gracefully) at the chance to rule in favor of SSM. After all, one can't trust voters to make such decisions, as time and again, they have decided the wrong way. The court, by contrast, knows what is best for voters; and they're going to give it to them, good and hard.

Consider that this same court ruled against the Boy Sprouts when they tried to expel a homosexual member (oddly enough, for not being "thrifty"); however, most of the current membership joined the club after that case was resolved. (I mean joined the court, not the Boy Sprouts; three of the justices wouldn't be permitted, being girls; and the other four probably can't fit into the uniforms.)

Massachusetts is the only state in the union that currently (as of Wednesday morning, 6:00 am) "allows" SSM; and by "allows," I of course mean judicially required the legislature to vote for it. But Massachusetts also has a law preventing people of the same gender from other states, countries, or planets getting hitched if the marriage would be illegal in their home worlds. And I'll lay you eight to one you can't repeat that three times fast.

That is, a California same-sex couple cannot fly to Salem (on plane or broomstick) and get married, because such marriages are agin' the law in the Golden State; so Gavin Newsom and Kinky Friedman are out of luck (I refer, of course, only to their political aspirations, I hasten to assure you and avoid litigation).

But New Jersy has no such law. If the court rules that the Garden State (see, I know these nicknames backwards and forwards) must allow same-sex couples, threesomes, lobster quadrilles, and the entire Mormon Tabernacle Choir to marry each other, then folks will flock (if that is the word I want) to Jersey from the four corners of the globe, just to marry, go home, file for divorce, and sue their home states for violating the fundamental right to apply New Jersey law in Wyoming. The idea is to start up a cascade of lawsuits that will start by forcing same-sex marriage and end by outlawing popery.

I don't know whether New Jersey has a citizens initiative process in its constitution; but if it does, it probably gives preference to recently deceased voters over those who have been dead for longer; so the full electorate (living, dead, and undead) could well be too liberal to pass a defense-of-marriage initiative anyway. So why did I even broach the dreary subject? (If they don't have one, I suggest they submit a citizens initiative to enact a citizens initiative.)

In every state where such initiatives have gone to ballot, they have passed, usually overwhelmingly. It's on the ballot in several states for November, and we'll see how it fares; but I'm taking wagers.

In any event, I think we all have a pretty good idea what the Jersey girls and boys on the court will decide. It's not a question of "will they or won't they," but more like "will they really let their hair down and end the announcement by mooning the state?"

Enquiring voters want to know -- how they shall be required to vote.

Hatched by Dafydd on this day, October 25, 2006, at the time of 6:54 AM | Comments (6) | TrackBack

October 6, 2006

It Just Keeps Getting Better and Better

In my previous post, Judicial Tyrants Teetering On the Brink, I discussed the California state appellate court that overturned the ruling by a San Francisco court requring same-sex marriages (SSMs) in this state, regardless of the 2000 ballot measure that restricted marriage to one man, one woman. I rather gloomily (and perhaps prematurely) wrote the following:

The sad part is that it was evidently an integral part of the ruling that in California, domestic partnerships are virtually the same as marriages.

In this, I foolishly relied upon the Associated Press story, which stated in unambiguous terms:

In reversing the March 2005 ruling of a San Francisco trial judge, the 1st District Court of Appeal agreed with the state's attorney general, who argued that California's ban on same-sex marriage does not discriminate against gays and lesbians because of the state's strong domestic partner law.

Lawblogger Xrlq was skeptical, however. Having at least skimmed the primary source (the court's opinion), he commented that "What I've seen so far indicates that the principal holding was that marriage is what the legislature/voters say it is - not that gays have a fundamental right to marry, but that right is satisfied by the domestic partnership law."

Intrigued (and more hopeful), I scurried after later, completer articles, and I found this Reuters piece. It completely backs Xrlq's position; if anything, it goes even farther... the state circus in fact enunciated a ringing endorsement of democracy over judicial tyranny:

"The Legislature and the voters of this state have determined that 'marriage' in California is an institution reserved for opposite-sex couples, and it makes no difference whether we agree with their reasoning," the California Court of Appeal held.

"We may not strike down a law simply because we think it unwise or because we believe there is a fairer way of dealing with the problem," it said in a majority opinion written by Justice William McGuiness....

The appeals court reversed a lower court, which had overturned California's ban on gay nuptials in a lawsuit triggered by the marriage licenses San Francisco briefly issued to same-sex couples in 2004.

"Courts in this state simply do not have authority to redefine marriage," the appeals court said.

It said a voter initiative or legislation would be required to legalize same-sex marriage.

This is a tremendously stronger slapdown of the SSM crowd than AP reported, and I am correspondingly much happier with it. However, one of the judges, Justice J. Anthony Kline, dissented. I hesitate to characterize his dissenting argument on the basis of a media account ("once bitten..."); but since Reuters seems to have gotten the rest of the story right (that is, it matches Xrlq's read of the opinion), I'll go for it.

Kline dissented on the grounds that domestic partnership laws constitute an unconstitutional "separate but equal" institution:

In its ruling Thursday, the court noted gay couples in California have rights comparable to married heterosexuals thanks to domestic partnership laws.

But gay rights activists said comparable rights are not equal rights, and, citing Justice J. Anthony Kline's dissent, they said the majority carved out an unconstitutional "separate but equal" standard for gays by supporting domestic partnerships, which Kline compared to laws enforcing racial segregation.

The domestic partnership act is "a form of pseudomarriage that stigmatizes homosexual unions in much the same way 'separate but equal' public schools stigmatized black students," Kline said.

"Like separate educational facilities, domestic partnership and marriage are 'inherently unequal,"' he said.

This is an emotionally powerful argument, but it's logically flawed. Let me take a few thousand words to show why that's obvious...

Origins of desegregation

First, what is the point of the Civil Rights Amendments and the racial desegregation they ulimately spawned? Prior to the Civil War, North America had a 250 year history of racial slavery stretching back long before the founding of America; and the West had an even longer tradition of racial slavery. (So did the Arabs and Turks, but that's irrelevant to this point.)

The Civil War was fought, whatever Southerners might absurdly argue, to end the practice of slavery. There were proximate causes, but that was the underlying one. But why is slavery wrong? Why should we put 600,000 soldiers into the ground just to end an institution that had stood in this place for two and a half centuries?

The Civil War was fought over the unique and unprecedented proposition that underpinned the very founding of our country:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

In the end, no argument for slavery, no matter how recondite, could batter down this simple, "self-evident" truth... if all men are created equal, then how can a whole race of men be condemned to slavery merely because of their skin color?

Once the nation finally accepted that argument (with the Civil War as a resounding exclamation point), desegregation was the inevitable result: because people being what they were, segregated public institutions, even if they began as equal, would in short order become very unequal.

Unequal inequalities

But not all inequality is wrong, let alone unconstitutional. We do not outlaw income disparity; nor do we follow the lead of Kurt Vonnegut's seminal short story "Harrison Bergeron" and handicap the talented so that they're no better than everyone else. What we hold to be "self-evidently" equal is the essence of personhood; and the laws we strike down are those that discriminate solely upon what a person is, not what he chooses to do.

Thus, the actual corollary to the segregation laws for gays would be a law that said, for example, that children determined to have "homosexual tendencies" were required to be educated in separate schools from those other kids who have "heterosexual tendencies."

So the first error in Kline's argument is that the marriage laws do not discriminate in such a fashion; they don't even mention heterosexuality or homosexuality -- and such a distinction is necessary for a law to discriminate against a person, rather than against an action: without a detailed description of the subset of humanity that is to be put down, how would anyone know who to discriminate against?

Segregationist laws always included a legal description of what makes a person black or white. The marriage laws contain no such distinction between heterosexual and homosexual... so right away we know Kline's argument is off base.

Equal equalities

Moreover, the laws are exactly the same for all genders and sexual preferences.

Lambda disagrees:

Jon Davidson of the gay rights group Lambda Legal said the California law was unfair, and legal analysts expect lawsuits over same-sex marriage will continue for years across the United States.

"This violates a fundamental right that all people have in California, which is to marry a person of their choice," Davidson said.

But this is nonsense; there is no such right "to marry a person of their choice." There are many rules:

• You can only marry a person of the opposite gender --
• Who is not already legally married --
• Who is not too consanguineous to you --
• Who is of legal age --
• And who consents to marry you;
• In addition, you must obtain a marriage license first.

(There may be other restrictions as well.)

Note that the exact, same rule applies to men and women, to gays and straights, and to all races. There is no extra restriction on gays; a gay man can marry any woman who fits the above requirements, just as a lesbian can marry any man who qualifies as above... just as with straights.

Not even SSM advocates actually argue that the law is different for people with different sexual preferences; what they really argue is that it's easier for straights than gays to obey it. It's a disparate-impact argument, not an equal-rights argument: since it's harder for gays to find an opposite-sex person they want to marry than it is for straights, they argue, it should be unconstitutional.

But it's likewise harder for swingers to find a single person they want to marry; they would prefer to marry half a dozen folks together. So does that mean the Constitution requires we legalize polygamy?

At this point, I start to get out of my legal depth: I only play a sea-lawyer on the web... I'm not really an attorney! Even so, it's my understanding that "disparate impact" theory is based in statute -- specifically, Title VII of the Civil Rights code, which relates specifically to employment discrimination. Beyond the obvious (marriage is not an employment contract), there is also the fact that even if some statute could be stretched to apply a disparate-impact theory to marriage, it would be a general statute... and there is a more specific statute, the Defense of Marriage Act, that explicitly restricts marriage (in federal cases) to one man and one woman; in addition, nearly every state has a similar act either as state law or in the state constitution.

The specific trumps the general, so this argument collapses upon inspection. Marriage laws are not in any way "unequal;" and if they have a disparate impact on people who prefer to marry members of the same sex -- or who prefer to marry their first cousins or marry two women at the same time, or marry a woman who doesn't want to get married -- that's too bad for them, but it doesn't make marriage law unconstitutional.

Who rules?

Finally, there is the ultimate question: who controls society? Another element of the Declaration of Independence -- which is actually federal law, by the way, one of the "Organic Laws of the United States" -- makes the answer to that question very clear:

To secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.

In no state of the United States have "the governed" ever consented to SSM; but if they did, I would argue that they do have that right: if the good people of the Commonwealth of Massachusetts were to enact through referendum (or through their legislature without the lege being compelled by the courts) laws allowing gay marriage, sibling marriage, or polyamorous marriage, I say fine; that is the job of the democratic arms of government, not the judicial.

When the courts order SSM, they usurp power that rightfully belongs to the voters. There is no clause nor amendment to the Constitution or any state constitution that says people have a "fundamental right" to "to marry a person of their choice;" some courts simply made that up, like the "right" to an abortion.

So there is a clear separation of powers argument against SSM that I doubt Justice Kline even considered.

The end -- at last!

As usual, it takes a powerful lot more argument to knock down a crazy theory than to propound one. But this is a nutter idea, that denying the "fundamental right" of gays "to marry a person of their choice" is the legal and moral equivalent of the discredited "separate but equal" doctrine. Such an argument results from the muddled and narcissistic emoting that masquerades as ratiocination at university today, where what matters is not what folks do -- but how they feel about themselves.

It has no place in a court of law.

See? I told you it was obvious!

Hatched by Dafydd on this day, October 6, 2006, at the time of 6:51 AM | Comments (7) | TrackBack

October 5, 2006

Judicial Tyrants Teetering On the Brink

The campaign by gay activists to force "gender neutral" marriage down our throats via judicial fiat suffered a catastrophic setback today. The 1st (state) District Court of Appeals overturned the ruling by a San Francsico state judge (a year and a half ago) that the state's marriage laws were unconstitutional because they restrict marriage to "a man and a woman."

The sad part is that it was evidently an integral part of the ruling that in California, domestic partnerships are virtually the same as marriages.

In reversing the March 2005 ruling of a San Francisco trial judge, the 1st District Court of Appeal agreed with the state's attorney general, who argued that California's ban on same-sex marriage does not discriminate against gays and lesbians because of the state's strong domestic partner law.

I would hope the court would have overturned the earlier ruling even if we didn't have any domestic partnerships at all; after all, there is no question more clearly left to the people than which relationships they will accept as "marriage."

Alas, I suspect that the court would have ruled differently. But at least they went this far upholding the 2000 ballot proposition by which the people of this state overwhelmingly limited marriage to one man, one woman.

But this is the part I find so amusing, indicating (as it does) that the Left no longer even remembers that the people in a democracy have any say at all:

The ruling does not guarantee, however, that same-sex couples will not ultimately be able to get married in California.

Of course; the voters could vote on a ballot proposition any time they want to allow same-sex marriage. Oh, wait -- that's not what the Associated Press had in mind. Here is the rest of the story:

The ruling does not guarantee, however, that same-sex couples will not ultimately be able to get married in California. Gay marriage advocates said beforehand that they would appeal to the state Supreme Court if the intermediate court did not decide in their favor.

What AP meant was that there was no "guarantee" because a higher court might overturn the appellate court and by golly go back to forcing it upon us willy nilly, whether we like it or not.

Naturally!

Hatched by Dafydd on this day, October 5, 2006, at the time of 3:45 PM | Comments (3) | TrackBack

September 13, 2006

Gulf What Syndrome?

A "panel of experts" went looking for Gulf War Syndrome and couldn't find it anywhere!

See if this sounds familiar:

Exposed to combat stress in an environment with abundant sources of potentially harmful chemicals, nearly 30 percent of Gulf War veterans have suffered some kind of illness with multiple symptoms, compared with 16 percent of service members who did not go there. But there is no coherent set of symptoms that points to an overall syndrome, the [Institute of Medicine] panel reported.

"Gulf War veterans consistently report experiencing a wide range of symptoms, and this the case for both American veterans and military personnel from Canada, Australia, and other countries who served in the Persian Gulf," said Lynn Goldman, a professor of occupational and environmental health at Johns Hopkins University Baltimore.

"But because the symptoms vary greatly among individuals, they do not point to a syndrome unique to these veterans," added Goldman, who chaired the panel of medical and occupational experts.

Here is what we have:

• "Gulf War Syndrome" (GWS) has been widely discussed for fifteen years in newspapers and magazines, on TV talk shows like Oprah and Jerry Springer, on the radio, and has even been referred to in the movies; probably every Gulf-War vet in America has heard of it.
• A number of soldiers who fought in the Gulf War (and many others who were simply in some branch of service during that period) have reported various symptoms; they have asked for government-paid medical care.
• The symptoms do not line up with each other; there is no consistent overlap. Some complain of running a fever, others complain their body temperatures are too cold. Some have pains in one part of their bodies, others have pains in completely different parts. Some have complained of flu-like symptoms, others have arthritis-like symptoms. And some sound almost childishly bizarre: burning semen and glow-in-the-dark vomit, for example.
• In addition, vets have blamed any other disease they contract -- everything from pelvic cancer to cirrhosis to Lou Gherig's disease -- on a weakened immune system caused by GWS.
• In the face of numerous studies finding no correlation, no special "syndrome," no statistically significant deviation from the norm of others in the service during this period, the vets who claim to be suffering from GWS say that they are the evidence, and this refutes any scientific studies.

MIchael Fumento has investigated GWS more than any other science writer, and he has argued for many years that there is no such "syndrome". If science exists and is at all believable, then GWS does not:

The latest Research Advisory Committee on Gulf War Illness, stacked with GWS activists by Department of Veterans Affairs Secretary Anthony Principi, said in so many words: "Damn the science and full speed ahead!" So doing, its September report – recently released – not only contradicted a previous advisory committee's findings but that of three different Institute of Medicine (IOM) panels; all appointed by the VA.

In doing so, it ignored that rates of both illness and death are lower among Gulf vets are no higher than those of comparable vets who didn't deploy; they're also far lower than those of comparable civilians. It also ignored the utter lack of commonality in symptoms, except that many studies have found GW vets have higher levels of stress-related illness. [Which could well be from the stress of being terrified about having GWS.]

Activists have attributed at least 123 symptoms to this "will-'o-the-wisp" syndrome, as former New England Journal of Medicine editor Marcia Angell described it to the New York Times." They include aching muscles, aching joints, abdominal pain, bruising, shaking, vomiting, fevers, irritability, fatigue, weight loss, weight gain, heartburn, bad breath, hair loss, graying hair, rashes, sore throat, itching, sore gums, constipation, sneezing, nasal congestion, leg cramps, hemorrhoids, hypertension, insomnia, and headaches.

Anybody who hasn't had most of the above symptoms is probably an android. But when a non-vet gets a cough, it's called "a cough." If a Gulf vet gets one, it's called GWS.

One claim is that GWS is caused by exposure to many chemicals during that brief war -- oil-fire smoke, possible chemical weapons stockpiled by Saddam and destroyed by U.S. troops, and of course, the ever-popular "evil vaccinations" that reportedly cause every illness known to Man, including AIDS and halitosis. But there is no correlation between individual soldiers' level of exposure and symptoms, except in those studies that rely entirely upon self-report of symptoms.

Other explanations (nerve gas, some unknow but ubiquitous Middle-Eastern virus) run into the same wall of non-correlation:

The reason the fad/theories come and go is because none ever pan out. Consider the nerve gas theory. It was given a bit of credence when it emerged that a battalion had blown up an Iraqi weapons bunker containing sarin gas. But sarin begins to dissipate in seconds, and the closest of these soldiers was three miles away. Others allegedly "gassed" from this explosion were hundreds of miles away.

Further, as General H. Norman Schwartzkopf pointed out in recent congressional testimony, during the war not a single soldier came down with symptoms of nerve gas poisoning. There is no evidence that an exposure to sarin so low as to cause no symptoms at the time could years later begin to wreak havoc on the body.

Finally, blaming nerve gas hardly accounts for all these stories we've been hearing about vets infecting their wives and children. Nerve gas is not contagious.

But science doesn't matter in the face of "we are the evidence" argumentation, just as evidence is irrelevant to creationists: when actual science gets in the way of hysteria, it is science that must give way to charges of "coverup" and "conspiracy."

The current study by the Institute of Medicine confirms what Fumento has said in many, many articles: you cannot have a single "syndrome" with symptoms unique to each individual and which doesn't even correlate with exposure to any conceivable agents or vectors. Modern medicine requires doctors, not voodoo priests.

I asked above whether GWS sounds at all familiar; it was actually a trick question, because the pattern is not merely similar, not merely identical, but literally the same game played with "silicone disease," "power-line disease," "post-partum disease," and today with "World Trade Center syndrome": it's really all one thing: it's I Feel Bad Complex in full cry.

The symptoms of IFBC include whatever any "sufferer" reports. It's caused by whatever unusual (or normal) life experiences the "sufferer" has lived through. The treatment is whatever the "sufferer" demands. And IFBC only goes away temporarily, returning with different symptoms, causes, and treatments the next time the "sufferer" feels bad.

We do no benefit to veterans by encouraging them to believe they have mystery illnesses with migrating symptoms and unlocatable causes, because they can never have any confidence that such phantom diseases ever go away. As Defense Secretary Donald Rumsfeld might say, luring vets into believing such nightmarish fantasies is "unhelpful."

It's time to put a stake through what Fumento calls "Gulf Lore sundrome," wreath it with garlic, and bury it at the nearest crossroads.

Hatched by Dafydd on this day, September 13, 2006, at the time of 4:20 PM | Comments (4) | TrackBack

July 14, 2006

The "Loving" Cup

In another shocker today, the 8th Circuit Court of Appeals overturned a lower-court ruling and restored Nebraska's constitutional amendment restricting marriage to the traditional one man, one woman it has always been. Once again, radicals seeking to destroy marriage as a unique institution were thwarted.

In fact, this is happening so often, I'm going to have to stop calling it a "shocker." (Dang, I kind of like the word.)

In addition, the ACLU, which had sued to prevent voters in Tennessee from even being allowed to vote on a similar constitutional amendment, was told to take a hike by a unanimous Tennessee Supreme Court (oddly, the New York Times article linked above fails to clarify which court made the ruling, attributing it only to "the high court;" I had to turn to the Nashville Tennessean to find out which "high court" ruled -- state or federal).

The Tennessee Supreme Court held that the ACLU lacked standing to sue in the first place. Three cheers for sanity!

The original ruling in the Nebraska case -- the one the 8th Circus just overturned -- was handed down by Judge Joseph F. Bataillon (type Bataillon,Joseph into the text box), who was "nominated by William J. Clinton on January 7, 1997." (Again, I had to turn to a third story to find out this information; Jeez Louise, is there some reason the Times cannot simply put all the relevant details in a single place?) I'm sure you're all as shocked as I that a radical federal judge turns out to be a Clinton appointee.

In the Nebraska case, U.S. District Judge Joseph Bataillon had ruled that the ban was too broad and deprived gays and lesbians of participation in the political process, among other things.

The 8th U.S. Circuit Court of Appeals disagreed, saying in its ruling Friday that the amendment ''and other laws limiting the state-recognized institution of marriage to heterosexual couples are rationally related to legitimate state interests and therefore do not violate the Constitution of the United States.''

Seventy percent of Nebraska voters approved the ban in 2000.

Note that the court applied the proper test: the "rational basis" test, not the "strict scrutiny" test that many same-sex marriage (SSM) activists want them to use. This recognizes that sexual preference is not now and never has been a protected class, as race and sex are.

A law that restricted who blacks could marry would rightly receive strict scrutiny -- and would rightly be overturned (as such laws generally were in Loving v. Virginia, 388 U.S. 1, decided by the U.S. Supreme Court in 1967). Similarly, a law that said that women could not marry without their father's permission would receive strict scrutiny -- since it applied to women as a class -- and would rightly be struck down.

As a society, there is a consensus that liberty includes a "zone of privacy;" hence, there was virtually no "outrage" among ordinary people when the Supreme Court decided in Lawrence v. Texas, 539 U.S. 558 (2003), that laws against "sodomy" were unconstitutional. Conservatives generally oppose the decision; but there simply is not the visceral rage that there is due to, say, Roe v. Wade.

Warning! Controversy alert!

And when you try to pin social conservatives down -- do they actually support the state of Texas telling them, personally, what kind of sex they may have with their wives? -- they do a lot of squirming and tap dancing... because deep down, even conservatives believe that there should be a zone of privacy; they just find gay sex "icky" enough that they hypocritically don't want to extend those privacy protections to homosexuals.

So virtually everyone, even social conservatives (whether they admit it or not -- hypocrisy is the tribute vice pays to virtue), supports the idea of a "zone of privacy" into which government may not intrude except for very, very strong reasons.

But legal marriage is not a "private" act; it is a public affirmation. It is a special category of relationship, one that is granted many privileges... and recognition and celebrity cannot be demanded; society, collectively through the vote, has the final authority on which relationships it will celebrate and which it will not.

People whose sexual preference is "same gender" have never been a "protected class" in society, because there has never been a consensus within society that there is no legitimate distinction between heterosexuality and homosexuality. Rather, most people find moral distinctions, child-rearing distinctions, and distinct social attitudes associated with traditional marriage and with SSM; it's entirely rational that citizens should choose, through the vote, which type of relationship they will sanction by law.

Individual states here and there (such as California) have inserted sexual-preference protections into the state constitution -- typically via the legislature, not the voters directly. But when the people of even those liberal states subsequently speak directly in an initiative, as California voters did just six years ago, clearly expressing opposition to this action by their supposed representatives, and in the absence of a clear and contrary federal consensus, courts are obliged to acquiesce.

Currently, 45 states strictly define marriage as a relationship between one man and one woman; there is no state that has ever voluntarily enacted "gender neutral" marriage; the only state that allows SSM is Massachusetts, and that was due to a radical, irrational decision by the Supreme Judicial Court of Massachusetts.

Supporters and opponents alike of traditional marriage in Massachusetts agree that if a state constitutional amendment is offered up in the state legislature, it will have enough votes to be sent to the people. And both sides likewise admit that if the people of the commonwealth are ever allowed to vote, they will overturn the court decision and restore Massachusetts to marital sanity. That is why liberals have worked so hard to prevent the amendment even from being brought up in the state senate for its second reading: they know they will lose, but the Cause is so important to them, they'll stave off the terrible day by overthrowing democracy itself.

We discussed this very point in an earlier post:

The most bedrock principle of a constitutional republic is that "governments are instituted among Men, deriving their just powers from the consent of the governed," which I hope sounds at least vaguely familiar. If "the Cause" ever becomes so important that it supercedes this core value -- if its patriotic defenders are nevertheless willing to climb into bed with tyrants who would burn down the very concept of representative government, if that's what it takes to advance the Cause -- then something stinks to high heaven about the Cause itself. (This is true even if the patriots subsequently denounce just such tactics as their allies are using while continuing to fight alongside them.)

We made a point then of saying we were not defending, in that post, the restriction of marriage to the traditional model. This time, we are. This time, Big Lizards tackles the toughest challenge to the traditional view, call it the "Loving" Cup, after Loving v. Virginia:

Why is it acceptable to ban same-sex marriage -- but unconstitutional to ban mixed-race marriage? Slither on to find out.

In Loving v. Virginia, the Supreme Court unanimously struck down a Virginia anti-miscegenation law titled the "Racial Integrity Act of 1924." The law was explicitly passed to maintain a strict separation between the races by preventing people of "different races" from marrying. It was passed during the peak of the Eugenics movement in the United States, when many worried about "degenerates" reproducing and damaging the purity of essence of the American people. Racism played easily into eugenics, as simpletons quickly learned to associate "degeneracy" with color.

In upholding the law, the Virginia state trial court Judge Leon Bazile made the intent crystal clear:

Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.

There was, thus, no doubt that the sole purpose of the Racial Integrity Act was to separate the races; its very name makes that obvious.

When the Supreme Court unanimously struck it down (thus, by extension, all such laws nationwide), Chief Justice Earl Warren wrote the following in the opinion:

Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival.... To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

(I will not turn this post into a referendum on Earl Warren; I disagree with many of his opinions, but not this one.)

These two opinions perfectly frame the controversy. It should be clear why SSM proponents constantly bring up Loving as the synecdoche of their argument. But to do so, they must drop the most critical component of Warrent's opinion, and indeed of the Court's decision: the inherently invidious distinction of race.

Chief Justice Warren did not conclude that "the freedom to marry, or not marry, any person the individual chooses resides with the individual and cannot be infringed by the State;" he very explicitly limited the decision to restrictions based upon "invidious racial discriminations."

This was no accident. The history of the 13th (1865), 14th (1868), and 15th (1870) Amendments to the United States Constitution -- the "Civil Rights" Amendments -- makes absolutely clear that they were addressed to race, even though race is not even mentioned in the most important of these, the 14th Amendment.

Since the very beginning of our republic, racial slavery had been a terrible controversy that almost aborted the United States before it was born. The southern states absolutely refused to give up slavery, while the opposite majority refused to accept it.

The Founders made two compromises to get the Constitution enacted and ratified:

• First, the slave trade, the "importation" of slaves, was effectively abolished as of 1808, twenty-one years after signing of the Constitution (Article I, section 9); it was left to Congress then, but a majority in Congress had wanted to abolish slavery altogether from the very beginning;
• Second, southern states wanted to count slaves in their censuses in order to get more representatives in Congress, even while they denied liberty to such persons; but northern states wanted slaves to be counted not at all, on the thesis that denial of liberty denies humanity: slaves could not be chattels when that suited the South's purposes and simultaneously men when that suited. Eventually, the states compromised that slaves could only be enumerated at 3/5ths their number for purposes of taxation and congressional representation (Article I, section 2).

But the compromises were insufficient; we drifted closer and closer to civil war over the issue of slavery throughout the nineteenth century. Eventually, the inevitable happened (hence the word "inevitable"): America fought the most vicious and destructive war of our entire history over the issue of racial slavery.

(Today's Southerners, feeling latent guilt for the crimes of their ancestors, often claim the war was not fought over slavery but over "state sovereignty." Next time, ask them which act of state sovereignty in particular sparked the rebellion; watch 'em temporize like a liberal!)

There is a lot of controversy over the ratification of the 14th Amendment, since ratification was required as a condition for rebelling states to be readmitted to the Union. But there is no question that by 1967, even the southern states would have ratified the 14th Amendment without having to be occupied by federal troops... since by then, blacks were allowed to vote. (Interestingly, the 15th Amendment -- allowing blacks to vote -- was ratified after all the rebellious states except Mississippi and Texas were readmitted to the Union.)

In 1964, three years before Loving, Congress enacted the Civil Rights Act that overthrew all of the "Jim Crow" laws; although many Democrats and some Republicans voted against it, the Act passed overwhelmingly: 70% in the House and 73% in the Senate. A year later, the Voting Rights Act was passed with even larger majorities in both houses.

Thus, by 1967, there was the overwhelming consensus in the United States that racial distinctions were inherently invidious; it was just a matter of following that principle to its logical conclusion: if racial classifications are inherently invidious, then in particular, racial restrictions on marriage cut against the fabric of America.

(An interesting point: I believe the same Court decision would have been inappropriate and premature in 1927, rather than 1967: there was no societal consensus about race forty years before Loving... we were still, as a nation, struggling to find a national voice on the issue. The courts rightly waited until consensus had been achieved by the normal, democratic organs of society before enunciating that such consensus meant contrary laws would be struck down. The Court, in the case of Loving, knew its place.)

But note the important point: this consensus was not created by the judges of the Warren Court: they only found a consensus that had been created long ago, over many decades, by debate, by the "terrible swift sword" of war... and most especially, by repeated voting of the whole people. And that is the correct order the Court should use: all of the objections every sane person has to the "reasoning" of Roe v. Wade, 410 U.S. 113 (1973), do not apply to Loving. The Court applied existing law and constitutional amendment to strike down a state statute whose fundamental premise, "distinctions between citizens solely because of their ancestry," was "odious to a free people whose institutions are founded upon the doctrine of equality."

But no such federal law or constitutional amendment exists in the case of SSM; nor is there any national consensus that distinctions drawn on sexual preference are as "invidious" or "odious" as those drawn by race. In fact, to the extent that consensus exists at all -- and it's a wide extent -- it is the exact opposite: based upon voting patterns, a national consensus clearly exists that marriage should be restricted to the traditional definition. (Remember, "consensus" is not the same as "unanimity.")

In state after state, in every region of the country, strong majorities (usually two-thirds or more) have rejected SSM and endorsed the traditional definition of marriage. Not even SSM proponents can deny this with a straight face.

So in order to argue that the precedent of Loving v. Virginia forces states to adopt SSM (or "gender-neutral marriage"), proponents must completely strip Loving of precisely the national consensus that produced it in the first place! Warren held that because of a national consensus that racial distinctions were odious and invidious, marriage could not be restricted by race. But now SSM proponents argue that despite a national consensus that sexual-preferences are acceptable, Loving must be extended to same-sex marriages.

Such an argument turns Loving on its head and upends logic, consistency, and the rule of law in the bargain. Thus it cannot prevail -- except in the topsy-turvey, Alice In Wonderland worldview of contemporary liberals, for whom paralogia is too familiar a bedfellow to cause any fear.

Hatched by Dafydd on this day, July 14, 2006, at the time of 4:08 PM | Comments (9) | TrackBack

July 10, 2006

In Shocker, Mass Court Rules According to Law

Here is a shocking headline... and the sad part is that such a ruling should come as a shock:

Mass. Court Backs Gay Marriage on Ballot

The same court that made Massachusetts the first state to legalize gay marriage ruled Monday that a proposed constitutional amendment to ban future same-sex marriages can be placed on the ballot, if approved by the Legislature.

The ruling was in a lawsuit brought by gay-rights supporters who argued that Attorney General Tom Reilly was wrong to approve the ballot measure because the state constitution bars any citizen-initiated amendment that seeks to reverse a judicial ruling.

In a unanimous decision, the Supreme Judicial Court said the constitution does not bar citizen initiatives from making prospective changes to the constitution, even if that effectively overrules the effect of a prior court decision.

What is shocking is that so many simply presumed that the Supreme Judicial Court of Massachusetts, because it demonstrably supports same-sex marriage (SSM), would therefore rule that the state constitution bars citizens from changing the state constitution. What stuns is that this was, indeed, the very argument advanced by Democratic backers of SSM: that "gay marriage" is so urgent, that citizens of a state are barred even from attempting to change the constitution, if that would eliminate SSM.

Those of you who support SSM -- think about that. I know there are many who support SSM (or don't care about it) but who oppose imposing it by judicial fiat; Patterico fits that description. But what does it say about a position that it has never been instituted except by judicial fiat? Those of you who actively support SSM as an "equality" issue... aren't you at least made uncomfortable by the fact that your fellow activists argue in the same breath in favor of "equality of marriage" -- and also that citizens cannot even amend their own constitutions?

This is so extreme and radical a position in favor of SSM that it unanimously disgusted the very same court that imposed SSM by court decision!

This is not normal for a supposed liberty. The vast majority of those who support freedom of speech, for example, and who oppose an amendment against flag burning, do not in the same instant try to get the Supreme Court to prevent it from being submitted to the states for ratification. Rather, they lobby Congress to vote against it and -- if necessary -- will lobby citizens in the states to vote against it.

The most bedrock principle of a constitutional republic is that "governments are instituted among Men, deriving their just powers from the consent of the governed," which I hope sounds at least vaguely familiar. If "the Cause" ever becomes so important that it supercedes this core value -- if its patriotic defenders are nevertheless willing to climb into bed with tyrants who would burn down the very concept of representative government, if that's what it takes to advance the Cause -- then something stinks to high heaven about the Cause itself. (This is true even if the patriots subsequently denounce just such tactics as their allies are using while continuing to fight alongside them.)

Let me introduce a term: tyranny creep. Tyranny creep is the tendency of people who strongly support something most people oppose to begin calling for more and more dictatorship to overcome the "fools and knaves" opposing their wonderful policy.

Recall Al Gore's mantra to "count every vote" -- while simultaneously trying to nullify as many military ballots as possible, and even more spectacularly, using the courts to try to disenfranchise all absentee voters in two entire counties in Florida: Martin and Seminole counties.

It's logically consistent to support an unpopular position but oppose its imposition by force... but it may not be rationally consistent in the real world, if finding other such fastidious supporters is as rare as finding Ted Kennedy sober. It should at least give pause to find oneself fighting shoulder to shoulder with those who would, in fact, force the Cause down our throats, with or without our consent -- and who then go even further to silence opposition and prevent even constitutional amendment, if that might threaten the great Cause. (Thomas Sowell's seminal book the Vision of the Anointed is required reading for any patriotic supporter of SSM.)

At some point, the patriot has to answer a question: by giving conservative "cover" to such anti-democratic forces, does he do more harm than the supposed good done by advocating the Cause in the first place?

It's a truism, as Larry Niven first noted, that "there is no cause so noble that it will not attract fuggheads." I would never suggest that we should abandon liberty because a few unuseful idiots use the term to miscall their bizarre tyrannies, when in fact honest brokers of that word far outnumber the dishonest. But when the "fuggheads" outnumber the noble supporters by 30, 40, 400 to 1, maybe it's time for Mr. "1" to rethink his association with the 400.

Is any cause so noble that it's worth defending, even if nearly everyone on its side is a fugghead? Or is it possible that the problem is the Cause itself, rather than just a few bad monkeys spoiling the whole barrel?

Hatched by Dafydd on this day, July 10, 2006, at the time of 1:34 PM | Comments (8) | TrackBack

July 6, 2006

California Marriage: the Good, the Bad, and the Ugly

California is often so far ahead of the rest of the country, we may as well be on another planet. Fortunately, we're usually not the bellwether.

(Curiously, twenty years ago, I wouldn't have characterized that as "fortunate." But that was then, this is now: twenty years ago, California was at least planted on one of the inner planets fairly near Earth's orbit... not the frozen gas giant we evidently orbit today.)

The "far-out"-ness of my home state is especially true anent same-sex marriage... though at least this time, we're not the Judas goat: that "honor" falls to Massachusetts, still the only state actually to enact same-sex marriage -- albeit at judicial gunpoint.

Still, California's liberal legislators are itching so hard to foist "gay marriage" upon us that I'm taking up a collection to buy the state legislature a gigantic vat of Calamine lotion. They tried once already last September, notwithstanding California's Proposition 22, enacted overwhelming in 2000 (61% to 38%), which restricts marriage to a union between one man and one woman.

But now, a state judge has ruled that Prop. 22 is unconstitutional, and the appellate courts -- and possibly the California Supreme Court -- may uphold that ruling. To that end, a couple of different groups are circulating petitions for initiative constitutional amendments to define marriage as one-man, one-woman; it would take a constitutional amendment actually to protect traditional marriage from the rampaging Democrats in this state.

Note that I do not argue the case for traditional marriage or against same-sex marriage in this post; the case is assumed. I've argued it before -- for example, in a column here, and in this blog in The Mythical Three, With This Ring I Y'All Wed, and The Value of Uniqueness -- and will do so again.

But this post is solely about the Machiavellian matrimonial machinations and madness currently sweeping the state: the good (and personal), the bad (and judicial), and the ugly (very legislative).

So abandon all hope, ye who enter here. Slither on, dude...

The Good

First the unalloyed good news (without even Sergio Leone's question mark), which is probably of only the most academic interest to the rest of you: my sister Julie is getting married on Saturday. Three cheers! Mazel-tov! (And about time!) She's marrying her long-term boyfriend Aaron; and of course Sachi and I will be in the wedding party.

For some reason, Julie turned down my offer to be a bouncer at the wedding; but I'll be doing something, I suppose. Sachi won't be a bridesmaid; she has some other role, but we won't be enlightened what either of our tasks will be until the rehearsal tomorrow night.

The Bad

Almost four months ago, on March 14th, San Francisco Superior Court Judge Richard Kramer gave his ruling in the case Woo v. Lockyer, overturning California's Proposition 22:

On March 14, 2005, Judge Richard Kramer of the Superior Court for San Francisco County, in a decision on six consolidated cases, ruled unconstitutional the two sections of California’s Family Code (sections 300 and 308.5) barring same-sex couples from access to marriage. Judge Kramer based his decision on the equal protection clause of the California constitution, concluding that California’s prohibition on marriage for same-sex couples failed to survive rational basis review, the test of legislation most deferential to the state. Furthermore, he concluded that the marriage law was subject to, and failed, the strict scrutiny test because it involved a “suspect classification,” namely gender, and a fundamental right under the California constitution, the right to marry.

The case was appealed to the Court of Appeals, First District, in San Francisco, where it's supposed to be argued on July 10th. Judge Kramer's ruling is stayed pending the appeal, of course. If the appeal fails and the ruling is upheld, then presumably the state Supreme Court will hear arguments next year (I cannot imagine they would refuse). But both the appellate court and, to a lesser extent, the state Supreme Court are liberal -- and it's entirely possible that Prop. 22 will be struck down.

Après ça, le déluge. The state legislature already passed a same-sex marriage bill in September, 2005, which was vetoed by Gov. Schwarzenegger precisely because it flew in the face of Prop. 22; if the latter were struck down, the legislature would immediately act to pass the same bill again... and this time, especially if it were after the November election, Schwarzenegger would have no reason not to sign it (he personally favors civil unions but hasn't really said what he thinks about same-sex marriage).

Thus, if Prop. 22 is struck down and not replaced by a stronger initiative constitional amendment, Californians will wake up to having become the second state to have legal same-sex marriage (the first to do so without being forced)... and likely very quickly also polygamy, as the same proposition banned both -- and as most of the lefty activists advocating "gay marriage" also agitate for polygamy and group marriage. If Judge Kramer isn't willing to so rule, some other, even more liberal San Francisco judge will be found; it's not hard.

Traditional marriage in California is at grave risk... and nobody on the Left is paying any attention to what the citizens themselves want (now, there's a shock).

Interestingly, on the larger canvas, two states, New York and Georgia, dealt a blow today to supporters of same-sex marriage and other weird variants:

Activists had hoped to widen marriage rights for gays and lesbians beyond Massachusetts with a legal victory in liberal New York, but the Court of Appeals ruled 4-2 that the state's law allowing marriage only between a man and a woman was constitutional....

In Georgia, where three-quarters of voters approved a ban on gay marriage when it was on the ballot in 2004, the top court reinstated the ban Thursday, ruling unanimously that it did not violate the state's single-subject rule for ballot measures. Lawyers for the plaintiffs had argued that the ballot language was misleading, asking voters to decide on same-sex marriage and civil unions, separate issues about which many people had different opinions.

Excuse me... can we borrow the New York or Georgia courts, please?

The Ugly

Given the concerted attempts to subvert the will of California citizens and voters by ramming same-sex marriage down our throats, in spite of the overwhelming vote against it in the 2000 initiative statute Proposition 22 (it won by nearly 23%), it's not surprising that those of us who strongly support traditional marriage and vehemently oppose same-sex marriage (as well as "domestic partnership" laws that are marriage in all but name) want to put another initiative on the ballot... but this time as a constitutional amendment, so a San Francisco judge cannot simply brush it aside.

(It didn't occur to anyone in 2000 that an amendment that read, in its entirety, "Only marriage between a man and a woman is valid or recognized in California," was in danger of being declared unconstitutional.)

The initiative process, however, is about as ugly as they come. All it takes is a few signatures -- 598,105 -- by an arbitrary deadline, after first crashing through the thicket of court rulings designed to prevent citizens from horning in on the parade of professional legislators.

The high signature threshold itself requires that any petition be backed by substantial money to hire professional signature gatherers... and that's just to get it on the ballot. Once there, millions will be required to pay for commercial advertising for traditional marriage; otherwise, the Democrats will redefine it into oblivion. (Did you know that anyone who supports traditional marriage hates gays, wants to restore the ban on interracial marriage, and engages in ritual human sacrifice?)

Despite the danger and despair, there actually is a ballot initiative circulating that would do just that. Unfortunately, there is also another ballot initiative circulating that would also do just that, and the authors appear to be quite unfriendly towards each other.

One group, Vote Yes Marriage, is led by Larry Bowler, Ed Hernandez and Randy Thomasson; their website is Vote Yes Marriage. The other, Protect Marriage, is led by Ivan Megediuk, Nikolay Bugriyev and Richard N. Otterstad, Jr.; they can be found at Protect Marriage... however, the front page hasn't been updated since January (!), so I'm not sure what their status is.

There is a tussle going on between these two groups. The Protect Marriage initiative favors using very simple language in their proposed amendment:

This is simple and easy to understand and very likely to get overwhelming approval from the voters. However, the Vote Yes Marriage campaign worries that it will be pecked to death by the ducks of the California judiciary, trying to find loopholes; they favor a more legalistic and complicated version:

Both initiatives would ban not only same-sex or polygamous marriage but also overturn California's civil-union law, which is basically marriage in all but name. I would certainly actively support and campaign for either or both. (If both pass on the same ballot, then the one with larger number of votes prevails.)

But I'm torn which is the better; there is no question in my mind that the first, shorter version is more likely to pass. But I agree with Vote Yes Marriage that it's also more likely to be twisted into a pretzel by the California courts. What I hope is that both campaigns combine and offer both propositions on the ballot: let the people decide by voting.

According to the website of California's Secretary of State Bruce McPherson (a liberal-to-moderate Republican), the long-form version by Vote Yes America failed to get on the ballot for the 2006 general election in November.

Daniel Weintraub of the Sacramento Bee (and the excellent Bee-blog California Insider) tells me via e-mail that it failed because of insufficient signatures... which makes me believe it's having money problems, possibly because of the kerfuffle with Protect Marriage. There are certainly enough supporters that they should have been able to clear the 600,000-signature hurdle.

Vote Yes Marriage is circulating another petition to get it on the ballot for 2008, for which the deadline is listed as November 27th.

Protect Marriage is also circulating a petition on their own short-form amendment for the 2008 election; their deadline is August 21st.

2008 is actually a better year than 2006 would have been: the appellate court should rule on Judge Kramer's challenge to Prop. 22 by early October (90 days after they hear oral arguments on July 10th, assuming that isn't delayed). If they strike 22 down, then the California Supreme Court will probably take up the appeal and rule either in late 2007 or early 2008. Thus, the insane California legislature could not pass a same-sex marriage bill until then; and we would know before the 2008 election whether or not the California government still believed in real marriage.

Prospects for passage -- if proponents can ever get either iniative on the ballot -- are good: even the Field Poll finds support for traditional marriage strong, with 51% opposing same-sex marriage to 43% supporting it, unchanged from 2004 and 2003.

This would undoubtedly rise if the courts struck down Prop. 22: everyone who voted for it back in 2000 will be even more determined to do so again, since they would feel the courts had just backhanded them in the mouth.

(Note that the Field Poll also notoriously underreports support for traditional marriage; in 2000, just before the election, the Field Poll found 54% of likely California voters supporting Prop. 22; a week later, it was passed 61.4% to 38.6%.)

Interestingly enough, the same Field Poll found 50% oppose amending the U.S. Constitution to define marriage as one man-one woman (40% support). While this may seem like a dichotomy, it's actually in line with other polls: according to Polling Report (ignore the first poll, which is about flag burning and mistakenly put in the wrong category), most Americans -- myself included -- believe the question of same-sex marriage should be decided by the states, not by the federal government.

And on the state level, we proponents of traditional marriage are winning big time. Initiatives defining marriage as one-man-one-woman have passed in every, single election they've been offered, in every state that has ever allowed its citizens to vote, from the deep South to Oregon to Michigan to the Midwest; no state's voters have ever rejected such a referendum: we're twenty for twenty.

The only two state legislatures that have ever voted for same-sex marriage are Massachusetts (which was responding to a direct order from the Supreme Judicial Court of Massachusetts) and California (which has no excuse, but which was at least vetoed by the governor).

Currently 20 states define marriage traditionally in their state constitutions (by referendum), while 43 do so in statutory language (mostly overlap, since we don't have 63 states). Only five states "do not have statutory or constitutional language preserving the traditional understanding of marriage": Connectucut, Massachusetts, New Jersey, New Mexico, Rhode Island. (The Heritage Foundation says six, but that's because they were including New York... whose appellate court just upheld the state's marriage definition.)

In addition, initiative constitutional amendments are on the November ballot in six states and pending in an additional five, while legislation is pending in the state houses of six states.

The End -- At Long Last!

So that's the good about traditional marriage and the bad and ugly about same-sex marriage in California: if the two petition-circulating groups -- Vote Yes Marriage and Protect Marriage -- can get their acts together (literally) and get something on the ballot, it will pass. But this may be after Proposition 22 is struck down and the legislature rushes to legalize same-sex marriage in early 2008.

And this would be a tragedy... not because it would stand; it won't. With that spur, either of the initiatives would pass by 65%. But it would be a tragedy to those poor souls who actually believe that the liberals in the Assembly and state Senate care a snap about them -- other than as a stick to bash Republicans. Many gay couples would rejoice at the law and rush to get married, only to see their marriages annulled just a few months later.

That will likely embitter and enrage them, and it would set back a gay-rights agenda by years... which of course is exactly what the Democrats want. They revel in hatred, anger, and despair, because that plays into their divisive campaign strategy.

Liberal Democrats believe that all permanently aggrieved minorities who feel "disenfranchised" will automatically vote for the Democrats. Enacting same-sex marriage will give nothing to gays but heartache; but it will scrape up a few more hopeless, bitter-end Democrats, so it's a good thing.

(Note that I support gay rights, such as the Supreme Court striking down "sodomy" laws in Lawrence v. Texas; but I argue that legal marriage is not a right but an acclamation that cannot be forced.)

But in the end, the people will have the last word... unless the California Supreme Court finds a way to find the California constitution itself unconstitutional.

Hatched by Dafydd on this day, July 6, 2006, at the time of 5:58 PM | Comments (6) | TrackBack

June 7, 2006

Can't Say We Didn't Warn Ya

Sooooooooo, the Senate finally voted today on the much-ballyhooed Federal Marriage Amendment.

You remember the last time they voted (in 2004, I believe), the amendment -- which needs 67 votes to pass, and at least 60 even to advance to that point -- garnered only 48 votes. But since then, in the 2004 election, four more Republicans were elected to the Senate; now the body stands at 55 Republicans, 44 Democrats, and one Mugwump.

The predictions going into this were that the FMA would get 57 votes; in Free the Federal Marriage Amendment..., we noted what the proponents were saying about 57 votes (though we did not make it a "prediction"); we noted that Sen. Wayne Allard was lowering expectations to "a majority;" and we added something else:

The FMA will likely get about 57 votes in the Senate -- though supporter Sen. Wayne Allard (R-CO, 96%) is now only willing to predict it will get "a majority," which means more than 50. 58 or more would be a huge victory; anything fewer than 55 would be an embarassing failure.

The FMA got 49 votes.

Is there any chance that the senators will figure out that at least one of the reasons it failed -- a major reason -- is that the FMA infringes the liberty of citizens of a state to vote to define marriage within that state? That if they were to switch to something like my proposed Defense of Marriage Amendment, they might do a heck of a lot better... and might even pass it?

Big Lizards Proposed Defense of Marriage Amendment

1. For federal purposes, marriage in the United States of America shall consist only of the union of a man and a woman.
2. The Constitution of the United States of America shall not be construed to require any state, territory, or possession of the United States, or Indian tribe, to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as or like a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.

Nah. Never happen. That would require Congress to consider giving up power, rather than grabbing more and more of it. Which means the amendment will continue to fail; and if ever the Court strikes down the Defense of Marriage Act, then we'll all be living in Massachusetts.

To quote Larry Niven: "Not responsible for advice not taken."

Hatched by Dafydd on this day, June 7, 2006, at the time of 3:34 PM | Comments (4) | TrackBack

June 6, 2006

Free the Federal Marriage Amendment...

...From its imperialist, anti-federalist foofoorah!

As longtime and attentive readers of this blog (or of Patterico's Pontifications and Captain's Quarters) know, I am a big fan of traditional marriage and no respecter of same-sex marriage. I see the latter as the thin edge of the wedge: the moment we, as a society, decide that marriage is not restricted to the special relationship between one man and one woman, there will be no philosophical or legal bar to judges declaring that every imaginable relationship is "special"... which, as "Dash" Parr of the Incredibles astutely notes, is the same as saying none is "special."

I believe traditional marriage is one of the cornerstones of Western Civilization and the greatest evolutionary leap of societal history. Societies that do not enshrine marriage as a relationship that is monogamous, mixed-sex, and non-consanguineous are doomed: they fail, sometimes with a whimper (a very appropriate phrase, considering what it means), betimes spectacularly.

But it is not the only cornerstone: another is democracy; another is liberty; and another, especially recently (the last couple of centuries), is federalism.

The problem with the Federal Marriage Amendment (FMA) is that it seeks not only to prevent judges from imposing same-sex marriage (or any other insane version of marriage) on other states, as the federal Defense of Marriage Act (DOMA) did, but also to prevent states from willfully choosing to enact same-sex marriage within their own borders.

But shouldn't they be able to? This is staggeringly anti-federalist; it amounts to marital imperialism... even though it imposes a regime that I, personally, support, I don't support its imposition by fiat -- even the fiat of a constitutional amendment that requires 67 senators, 290 representatives, and 38 state legislatures or referenda.

The 2004 version of the FMA (I'm not aware of a more current wording) reads:

1. Marriage in the United States of America shall consist only of the union of a man and a woman.
2. Neither this Constitution, nor the constitution of any State, shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman.

First, "marriage in the United States" seems, on its face, to mean any marriage in any state, even for purposes of the state. It appears that a same-sex marriage in Massachusetts could be challenged under this amendment even within Massachusetts. This is made very clear by the reference to "no the constitution of any State": presumably, even if the citizens of some state actually voted to amend their own state constitution to require "gender neutral" marriage, that amendment could be struck down by the FMA.

The real problem, however, is not that some state might freely decide to allow same-sex marriage; even if that were to happen, other states would not be required to recognize such marriages themselves... if DOMA were upheld. The problem is that the United States Constitution, in Article IV, section 1, the "Full Faith and Credit" clause, practically cries out for the Court to overturn DOMA:

Section 1. Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.

Anent marriage, I suspect (though I don't know the caselaw) that most judges would hold that the Full Faith and Credit clause means that a traditional marriage contracted in Arkansas would have to be accepted in Massachusetts, California, Vermont, and Hawaii. But what about a same-sex marriage contracted in Massachusetts? Is Arkansas required, under the Constitution, to honor it? Are the feds required?

The operative part of DOMA was clearly crafted with the Full Faith and Credit clause in mind:

No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.

So far as I know, no case attacking DOMA has ever made it beyond the appellate level; the courts so far have upheld it, using the judicially created "public policy exception" to the Full Faith and Credit clause of the Constitution.

But this may not be strong enough, as more and more pro-gay-marriage federal judges jump into the fray. It would only take a single "Roe v. Wade" style decision to throw out the exception and mandate same-sex marriage for all.

That is the only danger we have to protect against... and we should so so without infringing the liberty of the residents of any state to define marriage as it exists within that state. Thus, I would much prefer to see the following Constitutional amendment in place of the FMA... call it the Defense of Marriage Amendment, or DMA:

1. For federal purposes, marriage in the United States of America shall consist only of the union of a man and a woman.
2. The Constitution of the United States of America shall not be construed to require any state, territory, or possession of the United States, or Indian tribe, to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as or like a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.

Clause 1 is intended to define marriage at the federal level (i.e., for tax purposes, for Social Security, for federal welfare programs, and so forth). Clause 2 is the meat: the intent is to prevent federal or state judges from holding that the U.S. Constitution requires same-sex marriage -- or even that alternative forms of marriage, contracted in state A, are required to be accepted by state B.

(The "as or like" phraseology is specifically intended to prevent A from enacting "civil unions" that are marriages in everything but name -- then forcing B to extend those benefits within its own border.)

Besides recognizing the liberty citizens of a state should have while still protecting traditional marriage, there is one other advantage to the DMA over the FMA: I believe the DMA could actually pass, whereas the FMA never will.

What would it mean to oppose the FMA? A conservative who believed deeply in federalism might oppose it as an act of conscience... much as Barry Goldwater opposed the 1964 Civil Rights Act, not because he embraced bigotry or segregation, but because he was unalterably opposed to the Act's extension to private racism by private individuals on their own private property.

But to oppose the DMA necessarily means that you want Massachusetts to be able to force other states to accept gay marriage. It means that if ten thousand same-sex couples in California jet to Boston to get "married," then return -- that notwithstanding the vote of the people of California, California should be forced to recognize them as "husband and husband," or as "wife and wife."

While the FMA is anti-states' right, opposing the DMA is anti-states' rights. For Sen. Lindsay Graham (R-SC, 92%) to vote against DMA would be the same as saying he wanted some Boston brahmin to have sovereignty over South Carolina.

The FMA will likely get about 57 votes in the Senate -- though supporter Sen. Wayne Allard (R-CO, 96%) is now only willing to predict it will get "a majority," which means more than 50. 58 or more would be a huge victory; anything fewer than 55 would be an embarassing failure. But switching to the DMA, in my opinion, would stand a much better chance of garnering the 67 needed to move it towards the states (a similar vote in the House would also be required).

Call me a pragmatist, but I would rather see a more liberty-minded amendment that can actually pass than a top-down federal power-grab that has no chance of success.

Hatched by Dafydd on this day, June 6, 2006, at the time of 3:49 PM | Comments (9) | TrackBack

May 19, 2006

The Value of Uniqueness

The most typical response from those who support same-sex marriage to anyone who opposes it is this: "suppose your state adopted same-sex marriage; would that somehow hurt your own relationship with your wife? Would you love her any less just because two guys or two girls could also get married?"

The second question masquerades as a restatement or clarification of the first, but it's actually an insulting irrelevancy. We're not talking about love; pure love between any number of people has never been illegal. Only certain manifestations of love have been legally proscribed.

One such manifestation is sex. Sex other than within a traditional marriage used to be illegal nearly everywhere within Christendom (and Jewishdom); over the centuries, societies recognized the foolishness of trying to enforce marital fidelity by law.

Then, until recently, what were considered the most extreme versions of sex (to some people) were outlawed by the all-purpose word "sodomy," which typically referred, it seemed, to anything the judge wouldn't do with his own wife. I have argued for nearly twenty years that our organic documents -- especially the Declaration of Independence -- recognize a general "liberty interest" that more or less says the government should not try to regulate purely private "matters of conscience."

This, the Libertarian Axiom, has never been accepted as generally true; but in specific cases it has. And in particular, in the 2003 case of Lawrence v. Texas, the Supreme Court struck down all laws banning "sodomy," however defined.

So let's drop the "love" and "sex" stuff and get back to marriage.

First, same-sex marriage is not itself a "liberty interest." Liberty is the freedom to do something, to undertake some action -- from saying something to assembling to transacting business to having sex. But legal recognition of a same-sex union as "marriage" does not confer any freedom of action; you are already free to have gay sex, to live together, to call yourselves married in other than legal circumstances.

Rather, it's a demand for social approval of certain actions... and "social approval" is never a liberty interest.

Thus, society can restrict what kinds of relationships get dubbed "marriages" without restricting liberty. But should it? Does same-sex marriage actually harm society... and more specifically, does it actually harm already existing marriages?

The answer to the first question above -- does legal same-sex marriage somehow hurt my relationship with my wife? -- is Yes, of course it does... because it cheapens the unique value of that relationship.

Semantic note, it wouldn't hurt my relations with my wife (we would still interact the same)... but it would hurt the relationship as a separate entity, just as it would if we suddenly discovered the rabbi who married us was really an imposter, and we weren't actually legally married.

The reason is that uniqueness is itself a value; take away the unique nature of marriage, and the value is greatly diminished. All that stands between marriage and shacking up is that unique nature.

Illustration: suppose you go out with the girl of your dreams. Or, if you are a girl, the boy of your dreams. (If you are gay, please reverse those... see how ecumenical I am?) You have been friends with this person for some time, and you secretly love her. Him. Whatever.

At the end of the date, this person turns to you, takes you by the hands, and says "Pat" -- let's hope your name actually is Pat -- "I love you." Then the person kisses you passionately.

You're ecstatic. You're walking on air. All the way hope, it's like a Fred Astaire movie.

Then the next day, you tell you friends... and they solemnly inform you that she (or he) says that to every person she dates... kiss and all.

Now how do you feel? You feel like crap, because you realize that there was no uniqueness in that proclamation: she loves everybody, which is the same as saying she doesn't love anybody, especially not you. What made the three words valuable (even holy or sacred) was your mistaken idea that they were unique, something she shared with you and with nobody else. As soon as you realize those same words were offered to every Tom, Joaquin, and Yuri, they cease to have any value.

So we agree, I hope, that uniqueness itself is a quality that can imbue a situation or relationship with high, even holy value. Make the unique universal, and the value it adds vanishes altogether.

Back to marriage. Relationships have value not only to individuals but to the groups and societies those individuals form. A lawyer-client relationship, for example; it's useful to the individuals involved, but it's also useful to society to have an avenue where people can get advice without having to worry that their problems will be spread all over the community.

So we reward such relationships with special privileges (confidentiality, for example) -- and we confine them by special rules (defining who is a lawyer and who is a client of that lawyer). This is because we, as a society, believe that lawyer-client relationships benefit our society -- so we want to encourage them, and we also want to regulate them to ensure people are not just taking advantage of rights without fulfilling the obligations.

Marriage is the same: society has decided (rightly, in my opinion) that traditional marriage is a huge benefit not just to the individuals involved (typically more than two: husband, wife, but also children and potentially Grandma and Grandpa), but also to society as a whole: it nurtures children in the best possible environment, it combines the male with the female principles, it civilizes men, it protects women, and it provides an axis around which the wheels of larger institutions rotate, including property ownership, parental obligations, and our interaction with the government from testimony to taxes.

So we encourage it. But such encouragement is meaningless and useless if it's universally applied to every imaginable relationship of one or more human beings.

A "marriage" of thirteen women and six men is not the same as a traditional marriage: it does not have the same qualities, it does not have the same effect, it does not underpin our society the same way as does the particular relationship we have always called Marriage.

When society jettisons all distinctions between different types of relationships and chooses (or is forced) to call everything "marriage," then Marriage loses its uniqueness as an institution, hence its value to society and the individuals within the marriage.

It's like saying that any two or three or fifty chums chatting with each other are the same as a lawyer talking with his client, and they get all the same rights and privileges. There are rights of universalism and rights of exclusion; marriage is the latter. When an exclusive right is granted to all, it loses any value it obtained from uniqueness... which means all value whatsoever.

So the answer is yes: if California were to change the law to allow same-sex couples to legally marry (or groups larger than two, or persons already married, or consanguineous groups, or groups that do not obtain a license or go through a marriage ceremony), it would indeed damage my relationship (not relations) with my wife: the change would diminish its value, because it would remove the quality of uniqueness that underpins that value.

Thus, there is real damage to society from opening "marriage" up to all sorts of other relationships. And make no mistake: those advocating same-sex marriage also advocate the other changes listed in the paragraph above, because they rightly recognize that their real enemy is the very concept that any form of relationship at all can be excluded from the state of matrimony. If you recognize that society, in the form of the State, has any say whatsoever in determining who is "married," then there is no reason why it cannot restrict marriage to opposite-sex couples.

Their only consistent argument is to say "marriage for all, under any form of relationship." And marriage-for-all is ths same thing as marriage-for-none: definitions are by nature exclusionary; and Humpty-Dumpty aside, when you can simply redefine a word to mean anything convenient at the moment -- then that word actually means nothing at all.

There is a fancy word for this: nihilism. And those who are most forceful in advocating same-sex marriage are by and large marital nihilists who simply want to eliminate legal marriage altogether. Bear that in mind when you listen to their blandishment; substitute "polygamy" for "same-sex marriage," and you'll see that their arguments survive intact.

Hatched by Dafydd on this day, May 19, 2006, at the time of 2:49 PM | Comments (8) | TrackBack

With This Ring I Y'All Wed

Talk of same-sex marriage is becoming less "strange" to people's ears... and that represents a terrible danger to Western civilization. Just become something is become ubiquitous doesn't mean it's good or socially healthy; after all, we used to hear racial epithets so often, it seemed "normal."

It's an apt metaphor: those flogging same-sex marriage like to cast themselves as the "Freedom Riders" of gender-neutral marriage, trying to piggyback on the achievements of the Civil Rights movement to promote the idea that children don't need fathers or mothers growing up... just parental units of indeterminate gender. This is a despicable meme that, in lesser form, has already devastated families, particularly in black communities, where some 70% of children are now born out of wedlock and raised without fathers.

Yesterday, the Senate Judiciary Committee voted 10 to 8 (strict party lines) to send to the Senate floor a constitutional amendment to ban same-sex marriage nationwide. The amendment has no chance of passage; it needs 67 senators and 290 representatives just to send the amendment to the states, and there's nothing even close to that level of support.

But it's good that we keep bringing this up again and again, because we're apt to hear soon from federal circus-court panels that whole sections of the country must allow same-sex marriage -- because three guys in black robes said so. (No state has ever freely voted for same-sex marriage; two have "civil unions," which are not the same thing.)

Several points to make briefly, without a lot of argument:

• Same-sex marriage is not about "civil rights."

In the days of Jim Crow, blacks were denied the right to do the same things that whites could do: for example, blacks could not use the same rest rooms, water fountains, or even sit at the same lunch counters as whites. These racist laws were not based upon black behavior but the blackness itself; the South used the "one-drop" rule: one drop of "black blood" made you black, no matter how white you looked. No amount of good behavior could buy use of a "white toilet" by a black man.

But the gay activists pushing same-sex marriage are not demanding any right or freedom; legal marriage equals state recognition of a union, not the union itself. The union of any number of people is already protected as a liberty interest by the Supreme Court.

But one can completely support Lawrence v. Texas, the case that found laws against "sodomy" to be unconstitutional (as I do) -- while still rejecting the idea that the State must sanction any relationship someone declares.

To enact legal same-sex marriage is to say that the people of a state cannot decide what types of relationships they will applaud... and that is not a civil right... it's a narcissistic demand, like an infant howling for candy.

• The purpose of advocating same-sex marriage is not to compliment traditional marriage -- but to destroy it.

Many of the same activists advocating same-sex marriage also advocate polyamorous marriage and consanguineous marriage. They often cite as an argument "for" same-sex marriage the fact that too many folks who get married to a member of the opposite sex get divorced for frivolous reasons. But why is that an argument for diluting marriage even further by making it nothing more special than a business partnership?

If same-sex marriage becomes the norm, then as night follows day, polygamy, polyandry, group marriages, brother-sister marriages, and sham marriages among entire gated communities (for tax, insurance, and pension reasons) will become commonplace, as well.

• The core organic component of Western Civilization is one man, one woman marriage.

That is unquestionably the best way to raise children (Hillary Clinton notwithstanding); it represents the union of the male and the female principles; it is the best system for valuing and respecting women, who will be first and worst hurt if we abandon it.

If America jettisons traditional marriage and family, embracing all sorts of multi-partner unions on the basis of group rights, then we will fixate entirely upon the group and cast aside the individual as an irrelevancy. We already have forces (racial preferences, for example) tugging us in that direction; it is no exaggeration to say that our critical concepts of individualism, freedom, Capitalism, rights and responsibilities, and American exceptionalism will fall by the way.

I will likely return to this subject in the future; it's a principle about which I feel very strongly indeed.

Hatched by Dafydd on this day, May 19, 2006, at the time of 6:52 AM | Comments (8) | TrackBack

March 24, 2006

A Second Look At That "Second Look" At Same-Sex Marriage

Pew -- and everybody to the left of John McCain -- is waving the lavender shirt over the new Pew Research poll purportedly showing that opposition to "gay marriage" (they mean same-sex marriage) is crumbling. Interestingly, the real agenda was made apparent by Pew Research's director in an unguarded moment:

The public backlash over gay marriage has receded since a controversial decision by the Massachusetts Supreme Court in 2003 to legalize those marriages stirred strong opposition, says a poll released Wednesday.

Gay marriage remains a divisive issue, with 51 percent opposing it, the poll by the Pew Research Center for the People and the Press found. But almost two-thirds, 63 percent, opposed gay marriage in February 2004."Most Americans still oppose gay marriage, but the levels of opposition are down and the number of strong opponents are down," said Andrew Kohut, director of the Pew Research Center. "This has some implications for the midterm elections if this trend is maintained. There are gay marriage ballot initiatives in numerous states."

But what actually crumbles, the closer one looks at the survey itself, is the claim of crumbling.

First, the normal caveats:

• The poll is of adults, not even registered voters, let alone likely voters. It's almost useless for predicting the fate of "gay marriage ballot initiatives in numerous states," and it has no "implications for the midterm elections."
• As usual, the poll oversamples Democrats, giving them a 6-point advantage over Republicans (34 to 28). See page 29 of the PDF, which also gives the historical data on this question. You'll note that every single sample in the last year queried more Democrats than Republicans... though this month is especially bad (twice the usual gap).

Refer to a previous post that retails my analogy of the Mystery of the Misadded Restaurant Checks: when a score of polls all manage to oversample Democrats and skimp on Republicans, when compared to the turnout actually found in national elections, then mathematically, it's very, very hard to argue this is due to sheer, perverse chance.

There is some mechanism in effect here that produces sample after sample with more Democrats and fewer Republicans than there ought to be. The mechanism need not be deliberate; but the refusal to find and fix the problem -- alternatively, the refusal to weight for party affilliation -- most certainly is deliberate; it's a conscious decision to accept numbers the pollsters know are skewed to the left, rather than take steps to get accurate numbers.

What's sad is that Pew is one of the better pollsters.

But leave that aside; we'll go to politics with the polls we have, to paraphrase Secretary Rumsfeld. Here are the historical results on the "gay marriage" question:

Responses by date of survey to question "do you favor allowing gays and lesbians to marry legally?"

Survey Date	Favor	Oppose	Spread
March 2006	39	51	-12
July 2005	36	53	-17
December 2004	32	61	-29
August 2004	29	60	-31
July 2004	32	56	-24
March 2004	32	59	-27
February 2004	30	63	-33
November 2003	30	62	-32
October 2003	31	58	-27
Mid-July 2003	38	53	-14
March 2001	35	57	-22
June 1996	27	65	-37

So let's try to figure this out. Notice that from October 2003 through December 2004, public disapproval of same-sex marriage is very high, with a negative spread of about 30 points. But prior to and subsequent to this period, the gap is much lower, more along the lines of -15 points. What could have caused that abrupt jump?

(The numbers for 2001 and 1996 are too old and out of context to enter into this discussion; we would need to see poll numbers for several months around the given data, to see whether that is normal or anomalous for that year.)

Consider this: the Massachusetts Supreme Judicial Court ruled in Goodridge v. Dept. of Public Health, 798 N.E.2d 941 (Mass. 2003) that the commonwealth was required to recognize and allow same-sex marriage, regardless of what the people wanted. This ruling was released in November, 2003; but it was one of the most widely anticipated rulings of the year in the entire country, not just Massachusetts. Certainly by October of that year, everyone was talking about the case and how it would be decided.

In other words, when people's attention focused on same-sex marriage -- due to the MA ruling, to San Francisco Mayor Gavin Newsom's pell-mell issuing of illegal marriage licenses to same-sex couples, and to the subsequent electoral battles in many states to ban the practice -- public opposition to same-sex marriage skyrocketed.

When the issue faded from public view, the opposition dropped back down to the normal range.

Somehow, we have to explain this change. First, consider this reasoning from Pew, filtered through Fox News:

The number of people who say they strongly oppose gay marriage has dropped from 42 percent in early 2004 to 28 percent now. Strong opposition has dropped sharply among senior citizens and Republicans.

People are now evenly split on allowing adoptions by gay couples and six in 10 now favor allowing gays to serve openly in the military.

Legal challenges of laws on gay marriage could result in more court decisions that stir public opinion, but this midterm election year is starting with far less public anxiety about one of the nation's most volatile social issues.

Pew practically begs you to imagine that there was a massive sea-change in religious or moral values between July and October of 2003... and then an equally inexplicable seismic shift in people's moral attitudes, the opposite direction, between December, 2004 and July, 2005. They assume, a priori, that we all just "got used to the idea," or somesuch, as if there were no moral teachings on the subject at all. We were tabula rasa before 2003, then we reacted with shock, then we realized it was perfectly fine for men to marry men and women to marry women. It's obvious!

Occam's Razor suggests a simpler explanation. People's moral beliefs do not switch on a dime; but when confronted with a moral question they haven't thought about in more than a year, many folks reflexively answer the way they know they're "supposed to answer," in a world where tolerance is the only acceptable public moral principle. The issue hasn't been "activated" in their minds, so they just haven't thought it through recently.

It's likely that "strong opposition has dropped sharply" because same-sex marriage is not on the ballot in most states, not because people who oppose it (such as myself) have suddenly become reconciled to it. If I were asked, I would still oppose it; but many people don't think about such issues until they're confronted with the reality of them actually eventuating -- at which point, they rear up and say "No, I don't want that here!"

They may feel alone and isolated; they may not realize many others believe as they do. They may be anxious to please, especially when it makes no real difference (because there is no looming vote). But this phenomenon has been observed many times.

For example, people typically support race-based preferences ("affirmative action") in polls very significantly higher than they do when they actually have to vote -- that is, when it counts. Same with other liberal bromides, such as increasing the minimum wage, supporting policies designed to lower supposed "global warming," and offering immigrants guest-worker privileges: higher poll numbers, lower votes in actual elections.

Some issues, such as abortion, taxes, spending, corruption, and Iraq, are "activated" all the time; people generally respond in polls just the way they later vote (assuming the poll is well designed), because they're always thinking about such issues. You can't get away from thinking about abortion in this society. But other subjects fade from view, then from thought, until the next time it becomes a cause celebre. (Which could happen locally... if, e.g., the issue is on the ballot in your state or local elections.)

In fact, this precise issue, same-sex marriage, shows that pattern: anti "gay marriage" bills generally passed with much larger margins than early polling indicated they would... though the later polls nearly caught up by the time of the election, as people finally focused on the issue. ("The sight of the gallows doth wonderfully concentrate the mind," Samuel Johnson is supposed to have said in literary legend.) 2004 was exceptional, a "perfect storm" of activation, as event after event conspired for force people to think about same-sex marriage... and public support for it plummeted as a result.

Pew knows this; they simply don't want to admit it... because, I suspect, they still hope they can spook the herd into defeating one of these measures by making the people think there's a groundswell of public support for "gay marriage."

Here will be the proof: some states have anti-same-sex-marriage bills on the ballot this year. Come November, let's see whether any fails -- or indeed, whether they all pass by more than the 12% margin that this current Pew poll shows.

Place your bets!

Hatched by Dafydd on this day, March 24, 2006, at the time of 2:47 AM | Comments (11) | TrackBack

September 24, 2005

The Mythical Three

Patterico was kind enough to link my Lizard's Tongue column "the Great Civilizer" over on Patterico's Pontifications; in the lively (and very legalistic!) discussion in the comments page, I noticed three great myths about same-sex marriage cropping up again and again. Having seen these tossed out before, always recited as if everyone already knew them to be true, I reckoned it's best to clear the air of the nonsense now, before we get around to further debate on the actual issue.

Here are the myths:

1. Allowing same-sex couples to marry will extend the same civilizing effects of marriage to gays; isn't that good for society?
2. Gays don't choose their sexual orientation any more than straights do, so a ban on same-sex marriage is just as discriminatory as a racial ban.
3. You can't point to any specific marriage that will be damaged by allowing gays to marry, so obviously it won't have any impact on society at large, either; there is a natural tendency to pair up; people will still get married, so what's the big deal?

Rather than duke it out in the comments over there, I'll respond here and link back via trackback. That way I get a chance to spread myself a bit more.

Myth 1: Same-Sex Marriage Is As Civilizing As Opposite-Sex Marriage

The most interesting observation about this claim is that it is purely defensive; it begins from the nervous premise that gays need to be civilized! This is an amazing admission from the proponents of same-sex marriage; if the gay lifestyle were fine as it is, then why would it be so urgent to offer them the possibility of solemnizing their relationships by legally marrying? Unlike the economic argument, where the negative consequences (to inheritance, community property, or alimony) can be laid at the doorstep of "anti-gay discrimination," this position assumes the fact that there is something inherently wrong with behavior in the gay community which needs fixing. I only note the defensiveness in passing.

The first point to make is that the burden of proof of this peculiar claim is on the proponents of same-sex marriage, the ones who want to change 200+ years of American tradition, not on the rest of us to justify not changing everything. Since no one who asserts that giving a marriage license to gays living together will, by itself, help to "civilize" them has ever bothered trying to prove it (certainly not that I've seen), the point fails at inception. But I'll assume the burden of proof myself, to a partial extent; I will at least show why it's highly unlikely to be true. Such a mensch I am!

It's facially dubious. What is the enforcement mechanism? Traditional marriage civilizes men by the specific mechanism of forcing them to live with women. Men are already partially civilized even by dating women, let alone living with them, let even more alone being married to them. But gay men already date each other and live with each other -- with little evidence that shacking up moderates their behavior.

Alan P. Bell and Martin S. Weinberg, Homosexualities: A study of Diversity Among Men and Women, p. 308, Table 7, New York: Simon and Schuster, 1978: 75% of gay, white males admitted that they had had sex with more than one hundred separate males in their lifetimes; 28% claimed more than a thousand.

Being openly gay appears to exacerbate promiscuity. Paul Van de Ven, et al., "Facts & Figures: 2000 Male Out Survey," p. 20 & Table 20, monograph published by National Centre in HIV Social Research Faculty of Arts and Social Sciences, The University of New South Wales, February 2001: a survey in Australia in the year 2000 found that gay men who associated with the gay community were almost four times as likley to have had over fifty sexual partners in the preceding six months than were gay men who were not "out" and did not associate with the gay community.

But how does this stack up against men in heterosexual relationships? Robert T. Michael, et al., Sex in America: a Definitive Survey, pp. 140-141, Table 11, Boston: Little, Brown, and Co., 1994; Rotello, pp. 75-76: 94% of traditionally married heterosexuals had only a single sexual partner within the preceding year; in fact, 75% of cohabitating heterosexuals had only a single sexual partner. And among married heterosexuals, "a vast majority are faithful while the marriage is intact."

There simply is no dispute in the literature: gay men (and even lesbians) are more sexually promiscuous, as a group, than their heterosexual counterparts. So if gay men's sexual behavior is not moderated by dating and shacking up, then why would giving them the social approval of a marriage license do the trick?

You can't even argue that they act out because they're forced to hide their sexuality -- because (supra) it's exactly those gays who are completely "out" and connected with the gay community who are the most promiscuous.

There is not a shred of evidence in the voluminous research done on sexuality to indicate that gay men will moderate their behavior if they are allowed to legally marry -- instead of merely being religiously married or common-law married. Sorry, but that's the truth. If proponents disagree, let's see the studies. There are several European countries where "gender-neutral" marriage is the law; can any proponent point to a moderation of sexual behavior as a result?

Myth 2: Sexual Preference Is Fixed From Birth

It's a tangential issue, but it seems to carry great weight among proponents of same-sex marriage. It certainly seems to be true that the lion's share of heterosexuals never had any homosexual experiences; the opposite is less true: until quite recently, most gays had tried heterosexual sex and often even marriage. (Likely because of social pressure; recently, with homosexuality less of an issue, a much higher percent of gays have never had straight sex... but it's still lower than the number of straights who never had gay sex.)

But there is a large undistricuted middle here: bisexuals. Some bisexuals lean more one way than the other; some are equal-opportunity swingers. But all, by definition, can go either way. There is no question that the more homosexuality is socially "mainstreamed," the greater the number of natural bisexuals who will live homosexual lifestyles; contrariwise, the more it is socially discouraged, the less they will do so.

All right, so we get more people living a gay lifestyle. So what's wrong with that? Again, refer above: evidence pretty clearly indicates that the sexual standards of those living within the gay community are significantly looser than the sexual standards of those living within the straight community, even for gays and bisexuals. Again, more people openly living gay lifestyles, within the gay community, means more people on the margins engaging in high-risk or socially unacceptable sexual behavior: multiple partners, anonymous sex, unprotected sex, and ephebophilic sex; unprotected sex is especially likely, since the danger of pregnancy is nil.

So in fact, the preferences of a group of people of undetermined size who can switch back and forth from living as gay to living as straight may indeed make a significant difference in the society.

Myth 3: How Could Same-Sex Marriage Affect My Marriage?

When studying social questions, the proper approach is statistical -- not individual. This argument is structurally identical to arguing that just because we can never prove for any one particular person whether his lung cancer is related to his habit of smoking three packs of cigarettes a day, therefore we cannot say that smoking causes lung cancer.

But this is errant nonsense: statistically, those who smoke are at much higher risk of lung cancer than those who do not, regardless of whether we can prove causality in any particular case. The proof is that lung cancer is much more prevalent along the first group than the second. (Of course, to be completely scientific, you must account for other differences; but that is the essence of the proof.)

It's beyond the scope of this particular response to argue the case that same-sex marriage damages the institution of marriage; that argument will come later. But all that will be necessary to prove at that time is that the institution as a whole is damaged... there is no need to prove that any specific marriage is directly damaged by some measurable quantum; and the lack of specific cases is no more an argument for same-sex marriage than is the lack of a particular causal relationship between smoking and lung cancer in any specific person an argument that smoking isn't dangerous.

Three myths exploded. Now future discussion can proceed on a logical basis, not an emotional one. (Fat chance.)

Hatched by Dafydd on this day, September 24, 2005, at the time of 3:57 AM | Comments (19) | TrackBack

September 22, 2005

The Lizard's Tongue Flicks Forth

I promised for this week the first of several (I'm tentatively saying five) great secular arguments against same-sex marriage... and I deliver. Here is the innaugural entry of my column The Lizard's Tongue, which wil be available weekly (or biweekly, depending on the press of other engagements) from the Articles page.

You can get there by clicking Articles in the navigation bar above, so you can see the cool drop-down menu for the Lizard's Tongue column; it's in the sidebar on the right. Or if you're impatient, you can just click here to go to the column directly. Please let me know in the comments if this intricate apparatus fails in some spectacular way; if your car explodes, don't blame the Lizard's Tongue!

This first column is titled The Great Civilizer, and it argues that in general, women civilize men, while men encourage women to be more assertive and competitive. Both need the other... and it is in society's extreme interest to promote the union of male and female to create a family that is greater than either sex by itself.

This is also the spot to comment on the article itself, in the comments to this post.

Brad Linaweaver is working on his own columns, which will be monthly; they will likely relate to politics, to movies, and to science fiction... and they, too, will be linkable from the Articles page. I will also announce them as they materialize, and link to them from here.

Ain't technology great? Soon you'll be able to eat, sleep, and breathe Big Lizards twenty-five hours a day!

Hatched by Dafydd on this day, September 22, 2005, at the time of 5:58 AM | Comments (25) | TrackBack

September 19, 2005

California Linking Rings

Two great issues divide the most populous state in the Union. But they are inextricably linked together... and for those of us who support a California ruled by the people, not by professional liberals, it is vital that we win on both of them.

The first will also come to a head the quickest: the drive to take redistricting out of the clutches of the Democratic dominated legislature, which has gerrymandered the state so severely that the ordinary functions of democracy have been stifled. In the 2004 election, not one single seat in the legislature changed hands from Democrat to Republican -- or from Republican to Democrat. We remain encased in amber, like the hundred million year old mosquito in Jurassic Park.

The second great issue is longer term, and it will not be resolved this year; but it has a much greater potential to damage Western Civilization so severely it may never recover. That issue is the defense of traditional marriage from leftist suggestions for "improvement," such as "gender-neutral" marriage, polyamory, or the abolishing of marriage altogether.

Both of these issues will soon burst forth: the first in this November's special election, and the second in either the primary or the general election in 2006. And the two are linked, because it is the gerrymandered legislature, which has lost all fear of the electorate, which is trying to force same-sex marriage down our throats.

Not every blog has a focus, but some do: Power Line became the central blog in the Dan Rather-60 Minutes forgery; Captain's Quarters is the go-to blog for the news on Able Danger (and before that scandal broke, CQ was the blog of record for the Canadian parliamentary shenanigans); and of course, Patterico's Pontifications absolutely owns the Los Angeles Times -- or as he used to call it, the L.A. Dog Trainer.

Ordinarily, I'm not a "theme" guy; but these two issues are so important to me -- and to California, and I believe to our country -- that I will return to them again and again. So today, I only want to set the stage.

Note: This post is a rewrite of a Scaley Classic that was first posted on Patterico's Pontifications under the title Dafydd: Only a Brief Respite. It's longish, so read on only if you care anything about the culture you live in, you Philistine. (Not that I'm trying to load any guilt on you; if you don't care about anything, I'll just sit here in the dark and suffer. Oy.)

Traditional Marriage

Earlier this month, Gov. Schwarzenegger announced that he would veto the same-sex marriage bill, which had been greased through the legislature by the underhanded Democrats while real Americans were distracted by the devastation of Hurricane Katrina. This gave the state some breathing room. But make no mistake: this is not victory for those who support keeping the traditional definition of marriage (that would be about 61% of the California electorate); it's only a brief reprieve.

His reason for the veto is not any heartfelt objection to same-sex marriage but rather the obnoxiousness of the legislature trying to enact same-sex marriage just five years after the electorate voted overwhelmingly to ban it. Proposition 22 passed with 61.4% of the vote; it read: "Only marriage between a man and a woman is valid or recognized in California." Simple, direct, straightforward... but not to a leftist who knows better.

Schwarzenegger has since announced that he is running for reelection; but the odds that he'll win reelection in 2006 are at best 50-50; on the flip of a coin, the Democratic nominee may be the new governor.

California is not fundamentally a liberal state; but it's a split state with the Democrats stronger than the Republicans. And the California Republican Party is in such disarray -- probably the worst in the country -- that Democrats consistently win nearly all statewide offices. Arnold's win in the Davis recall election was a fluke; he was an outsider to California politics, and approval of the insiders was at its lowest ebb that I can recall since I was old enough to notice politics.

But now Schwarzenegger is an insider, too; add to that his abysmal job-approval numbers (unfair in my opinion, but my opinion is irrelevant), and the stage is set for the governorship to return to the party of Barbara Boxer and Nancy Pelosi, unless Arnold can pull another Hasenpfeffer out of his hat.

The Democrats have made themselves clear: the moment one of them is in the governor's mansion, the state senate and assembly will immediately (possibly on the first day of the new session) approve same-sex marriage, and to hell with the voters. The bill will quickly be signed by the new Democratic governor. There will be a donnybrook in the courts; maybe we'll win... maybe we won't.

So for anyone who believes it's important to stop the recognition of same-sex marriage, it is now more important than ever before to enact a traditional definition of marriage into the state constitution in the 2006 election (primary or general, depends on when the initiative petitions are filed).

I will not here explain why same-sex marriage is so dangerous. But I will post an article this week to this site (and excerpt and link it on this blog) that argues, from a completely secular viewpoint, why traditional marriage must be preserved and must be the only form of legal relationship specifically approved by the state. Patience the way of the Jedi is!

That still will not protect us from the numerous "Thelton Hendersons" infesting the federal district courts in California and the 9th Circus Court of Appeals. For that, we need a strong and conservative Supreme Court ("conservative" in the sense of ruling on the basis of what the Constitution says, not what they wish it said). But a state constitutional amendment will protect us from rampaging state judges, who tend to be far more numerous and aggressively prejudiced than their federal counterparts.

There are three initiatives to protect the special status of traditional marraige that are in various stages of preparation; they will shortly go to the people for signatures and eventually, I hope, be placed upon the ballot. Two of them also ban (or at least discourage) so-called "domestic partnerships." There was a time when I supported domestic partnerships; but since the California Supreme Court ruled that the state had to treat such relationships exactly the same as marriage, I changed my mind. To the court, it's just marriage under another name. I argue my case here.

Proposition 77 - Fair Redistricting

It is also vital to change the redistricting rules to have the lines drawn not by the state legislature but by retired judges. This is the crux of Proposition 77, which has already qualified for the ballot in this November's special election. (State Attorney General Bill Lockyer -- a Democrat, of course -- pulled a dirty trick to force Propl 77 off the ballot; it took the state supreme court to overturn the unjust appellate-court decision and restore the people's right to vote on the initiative.)

Under ordinary circumstances, I would be on the other side; I don't like judges, even retired ones, intruding into the democratic process. Alas, the California state legislature is so mind-bogglingly partisan, patrician, and pandering, that we no longer have a democratic process in this state. The legislature is under the complete dominance of the Democrats... and they have used their majority to lock in the gerrymander to end all gerrymanders. It is currently impossible for the Republicans to make any gains, no matter how close the parties grow... and indeed, even if the Republicans were to become the majority party, the Democrats would remain the majority in the legislature -- and would therefore control redistricting in 2010, as well, allowing them to protect their gerrymander.

That is why the Democrats are so willing to spit in the faces of the California voters: they know they are immune. There is virtually nothing voters can do about them, because the election process itself has been rigged. So long as the Dems pander to their überleft base, Republicans are locked out. And the Democrats have shown, time and again, that whenever they have the power to draw the lines, they will gerrymander to the fullest extent.

Therefore, the power to redistrict must be taken out of the hands of the corrupt legislature. Paradoxically, we must shift it to the undemocratic decision of retired judges in order to restore democracy.

Anatomy of a Gerrymander

How does a gerrymander work? Simple example. Let's say a state has 1,000,000 residents. And let's say each resident either votes Democratic or Republican. 530,000 are registered Democrats, and 470,000 are registered Republicans. Assume 80% of each party always vote for their guy, while 20% of each comprises swing voters who might vote either way.

Now, this is a 53 to 47 split, fairly close; if there are ten districts, 100,000 residents each, you would expect to find 5 Democrats in the legislature, 4 Republicans, and one seat that is usually D but sometimes R. (Assume a unicameral legislature, just for simplicity.)

But check this out; the Democrats get a chance to redistrict, and they create the following districts:

1. 69,000 Ds and 31,000 Rs;
2. 69,000 Ds and 31,000 Rs;
3. 69,000 Ds and 31,000 Rs;
4. 69,000 Ds and 31,000 Rs;
5. 69,000 Ds and 31,000 Rs;
6. 69,000 Ds and 31,000 Rs;
7. 69,000 Ds and 31,000 Rs;
8. 15,000 Ds and 85,000 Rs;
9. 15,000 Ds and 85,000 Rs;
10. 17,000 Ds and 83,000 Rs;

Since 80% (loyal Democrats) of 69,000 is 55,200, which is 55.2% of the vote, the Ds are guaranteed to win 7 of the 10 seats, even if the 20% of swing voters defect. Whatever the Ds want passes the state legislature every single time... and they even have more than 2/3rds, enough to override the governor's veto, if they must. So a tiny advantage is converted into total and eternal domination, all by clever use of their redistricting powers.

Actually, it's even worse: suppose Democrats go absolutely off their rockers, and this results in the Republican Party growing stronger. Let's say that 5000 Democratic residents of each district convert to the Republican Party. Then each of the seven Democratic districts would have 64,000 Ds and 36,000 Rs, while each of the three Republican districts would have 10,000 Ds and 90,000 Rs (actually, one would have 12,000 Ds and 88,000 Rs, but that's not important).

In this case, Republicans would outnumber Democrats statewide by 520,000 to 480,000, almost the reverse of the first example... yet the Democrats would still control those same 7 out of 10 districts. This is exactly what happened in Texas, resulting in a strong majority of Republican voters -- but an equally strong majority of Democratic legislators. It took political dynamite (and a powder-monkey named Tom DeLay plus many years of fighting) to finally correct that ludicrous situation.

Although this is a simplified example, this is basically the situation we're in right now, except the Democrats don't quite have enough guaranteed seats to override a veto, thank goodness.

Thus, even though the Dems would still have a legislative majority under fair districts, it wouldn't be as overwhelming as it is now... and it would be much harder to enact insane, hard-left legislation, because there would be a lot more districts whose voters were moderate and could flip either way. Seats would flip from Democratic to Republican, and that itself will force moderation on the Democratic Party.

In most other states, I agree the legislature should draw the district lines; but when the majority proves itself to be functionally incapable of behaving in a democratic fashion, they should not have the power to predetermine the results of the very elections that are the only way to redistribute power. It's like electing a party whose main platform is to abolish all future elections; if you do it, you're sunk.

Linked Rings

The two quests are tied together, because if we don't fix the shattered redistricting process, we'll have to face the same challenges to traditional marriage over and over, every election cycle, ad nauseum. And if we allow same-sex marriage to be crammed down Californians' throats, then there will be such bitterness and disgust within the Republican base that many will just drop out of politics altogether (or move out of the state) -- which is exactly what the Democrats hope for. (I would say "pray for," but, you know -- Democrats are to prayer as Superman is to Kryptonite.)

We need unassailable victories on both fronts. We need to win both of these for the Gipper.

Hatched by Dafydd on this day, September 19, 2005, at the time of 5:13 AM | Comments (10) | TrackBack

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