Category ►►► Matrimonial Madness

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,