July 14, 2006

The "Loving" Cup

Hatched by Dafydd

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

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

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

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

The original ruling in the Nebraska case -- the one the 8th Circus just overturned -- was handed down by Judge Joseph F. Bataillon (type Bataillon,Joseph into the text box), who was "nominated by William J. Clinton on January 7, 1997." (Again, I had to turn to a third story to find out this information; Jeez Louise, is there some reason the Times cannot simply put all the relevant details in a single place?) I'm sure you're all as shocked as I that a radical federal judge turns out to be a Clinton appointee.

In the Nebraska case, U.S. District Judge Joseph Bataillon had ruled that the ban was too broad and deprived gays and lesbians of participation in the political process, among other things.

The 8th U.S. Circuit Court of Appeals disagreed, saying in its ruling Friday that the amendment ''and other laws limiting the state-recognized institution of marriage to heterosexual couples are rationally related to legitimate state interests and therefore do not violate the Constitution of the United States.''

Seventy percent of Nebraska voters approved the ban in 2000.

Note that the court applied the proper test: the "rational basis" test, not the "strict scrutiny" test that many same-sex marriage (SSM) activists want them to use. This recognizes that sexual preference is not now and never has been a protected class, as race and sex are.

A law that restricted who blacks could marry would rightly receive strict scrutiny -- and would rightly be overturned (as such laws generally were in Loving v. Virginia, 388 U.S. 1, decided by the U.S. Supreme Court in 1967). Similarly, a law that said that women could not marry without their father's permission would receive strict scrutiny -- since it applied to women as a class -- and would rightly be struck down.

As a society, there is a consensus that liberty includes a "zone of privacy;" hence, there was virtually no "outrage" among ordinary people when the Supreme Court decided in Lawrence v. Texas, 539 U.S. 558 (2003), that laws against "sodomy" were unconstitutional. Conservatives generally oppose the decision; but there simply is not the visceral rage that there is due to, say, Roe v. Wade.

Warning! Controversy alert!

And when you try to pin social conservatives down -- do they actually support the state of Texas telling them, personally, what kind of sex they may have with their wives? -- they do a lot of squirming and tap dancing... because deep down, even conservatives believe that there should be a zone of privacy; they just find gay sex "icky" enough that they hypocritically don't want to extend those privacy protections to homosexuals.

So virtually everyone, even social conservatives (whether they admit it or not -- hypocrisy is the tribute vice pays to virtue), supports the idea of a "zone of privacy" into which government may not intrude except for very, very strong reasons.

But legal marriage is not a "private" act; it is a public affirmation. It is a special category of relationship, one that is granted many privileges... and recognition and celebrity cannot be demanded; society, collectively through the vote, has the final authority on which relationships it will celebrate and which it will not.

People whose sexual preference is "same gender" have never been a "protected class" in society, because there has never been a consensus within society that there is no legitimate distinction between heterosexuality and homosexuality. Rather, most people find moral distinctions, child-rearing distinctions, and distinct social attitudes associated with traditional marriage and with SSM; it's entirely rational that citizens should choose, through the vote, which type of relationship they will sanction by law.

Individual states here and there (such as California) have inserted sexual-preference protections into the state constitution -- typically via the legislature, not the voters directly. But when the people of even those liberal states subsequently speak directly in an initiative, as California voters did just six years ago, clearly expressing opposition to this action by their supposed representatives, and in the absence of a clear and contrary federal consensus, courts are obliged to acquiesce.

Currently, 45 states strictly define marriage as a relationship between one man and one woman; there is no state that has ever voluntarily enacted "gender neutral" marriage; the only state that allows SSM is Massachusetts, and that was due to a radical, irrational decision by the Supreme Judicial Court of Massachusetts.

Supporters and opponents alike of traditional marriage in Massachusetts agree that if a state constitutional amendment is offered up in the state legislature, it will have enough votes to be sent to the people. And both sides likewise admit that if the people of the commonwealth are ever allowed to vote, they will overturn the court decision and restore Massachusetts to marital sanity. That is why liberals have worked so hard to prevent the amendment even from being brought up in the state senate for its second reading: they know they will lose, but the Cause is so important to them, they'll stave off the terrible day by overthrowing democracy itself.

We discussed this very point in an earlier post:

The most bedrock principle of a constitutional republic is that "governments are instituted among Men, deriving their just powers from the consent of the governed," which I hope sounds at least vaguely familiar. If "the Cause" ever becomes so important that it supercedes this core value -- if its patriotic defenders are nevertheless willing to climb into bed with tyrants who would burn down the very concept of representative government, if that's what it takes to advance the Cause -- then something stinks to high heaven about the Cause itself. (This is true even if the patriots subsequently denounce just such tactics as their allies are using while continuing to fight alongside them.)

We made a point then of saying we were not defending, in that post, the restriction of marriage to the traditional model. This time, we are. This time, Big Lizards tackles the toughest challenge to the traditional view, call it the "Loving" Cup, after Loving v. Virginia:

Why is it acceptable to ban same-sex marriage -- but unconstitutional to ban mixed-race marriage? Slither on to find out.

In Loving v. Virginia, the Supreme Court unanimously struck down a Virginia anti-miscegenation law titled the "Racial Integrity Act of 1924." The law was explicitly passed to maintain a strict separation between the races by preventing people of "different races" from marrying. It was passed during the peak of the Eugenics movement in the United States, when many worried about "degenerates" reproducing and damaging the purity of essence of the American people. Racism played easily into eugenics, as simpletons quickly learned to associate "degeneracy" with color.

In upholding the law, the Virginia state trial court Judge Leon Bazile made the intent crystal clear:

Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.

There was, thus, no doubt that the sole purpose of the Racial Integrity Act was to separate the races; its very name makes that obvious.

When the Supreme Court unanimously struck it down (thus, by extension, all such laws nationwide), Chief Justice Earl Warren wrote the following in the opinion:

Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival.... To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

(I will not turn this post into a referendum on Earl Warren; I disagree with many of his opinions, but not this one.)

These two opinions perfectly frame the controversy. It should be clear why SSM proponents constantly bring up Loving as the synecdoche of their argument. But to do so, they must drop the most critical component of Warrent's opinion, and indeed of the Court's decision: the inherently invidious distinction of race.

Chief Justice Warren did not conclude that "the freedom to marry, or not marry, any person the individual chooses resides with the individual and cannot be infringed by the State;" he very explicitly limited the decision to restrictions based upon "invidious racial discriminations."

This was no accident. The history of the 13th (1865), 14th (1868), and 15th (1870) Amendments to the United States Constitution -- the "Civil Rights" Amendments -- makes absolutely clear that they were addressed to race, even though race is not even mentioned in the most important of these, the 14th Amendment.

Since the very beginning of our republic, racial slavery had been a terrible controversy that almost aborted the United States before it was born. The southern states absolutely refused to give up slavery, while the opposite majority refused to accept it.

The Founders made two compromises to get the Constitution enacted and ratified:

  • First, the slave trade, the "importation" of slaves, was effectively abolished as of 1808, twenty-one years after signing of the Constitution (Article I, section 9); it was left to Congress then, but a majority in Congress had wanted to abolish slavery altogether from the very beginning;
  • Second, southern states wanted to count slaves in their censuses in order to get more representatives in Congress, even while they denied liberty to such persons; but northern states wanted slaves to be counted not at all, on the thesis that denial of liberty denies humanity: slaves could not be chattels when that suited the South's purposes and simultaneously men when that suited. Eventually, the states compromised that slaves could only be enumerated at 3/5ths their number for purposes of taxation and congressional representation (Article I, section 2).

But the compromises were insufficient; we drifted closer and closer to civil war over the issue of slavery throughout the nineteenth century. Eventually, the inevitable happened (hence the word "inevitable"): America fought the most vicious and destructive war of our entire history over the issue of racial slavery.

(Today's Southerners, feeling latent guilt for the crimes of their ancestors, often claim the war was not fought over slavery but over "state sovereignty." Next time, ask them which act of state sovereignty in particular sparked the rebellion; watch 'em temporize like a liberal!)

There is a lot of controversy over the ratification of the 14th Amendment, since ratification was required as a condition for rebelling states to be readmitted to the Union. But there is no question that by 1967, even the southern states would have ratified the 14th Amendment without having to be occupied by federal troops... since by then, blacks were allowed to vote. (Interestingly, the 15th Amendment -- allowing blacks to vote -- was ratified after all the rebellious states except Mississippi and Texas were readmitted to the Union.)

In 1964, three years before Loving, Congress enacted the Civil Rights Act that overthrew all of the "Jim Crow" laws; although many Democrats and some Republicans voted against it, the Act passed overwhelmingly: 70% in the House and 73% in the Senate. A year later, the Voting Rights Act was passed with even larger majorities in both houses.

Thus, by 1967, there was the overwhelming consensus in the United States that racial distinctions were inherently invidious; it was just a matter of following that principle to its logical conclusion: if racial classifications are inherently invidious, then in particular, racial restrictions on marriage cut against the fabric of America.

(An interesting point: I believe the same Court decision would have been inappropriate and premature in 1927, rather than 1967: there was no societal consensus about race forty years before Loving... we were still, as a nation, struggling to find a national voice on the issue. The courts rightly waited until consensus had been achieved by the normal, democratic organs of society before enunciating that such consensus meant contrary laws would be struck down. The Court, in the case of Loving, knew its place.)

But note the important point: this consensus was not created by the judges of the Warren Court: they only found a consensus that had been created long ago, over many decades, by debate, by the "terrible swift sword" of war... and most especially, by repeated voting of the whole people. And that is the correct order the Court should use: all of the objections every sane person has to the "reasoning" of Roe v. Wade, 410 U.S. 113 (1973), do not apply to Loving. The Court applied existing law and constitutional amendment to strike down a state statute whose fundamental premise, "distinctions between citizens solely because of their ancestry," was "odious to a free people whose institutions are founded upon the doctrine of equality."

But no such federal law or constitutional amendment exists in the case of SSM; nor is there any national consensus that distinctions drawn on sexual preference are as "invidious" or "odious" as those drawn by race. In fact, to the extent that consensus exists at all -- and it's a wide extent -- it is the exact opposite: based upon voting patterns, a national consensus clearly exists that marriage should be restricted to the traditional definition. (Remember, "consensus" is not the same as "unanimity.")

In state after state, in every region of the country, strong majorities (usually two-thirds or more) have rejected SSM and endorsed the traditional definition of marriage. Not even SSM proponents can deny this with a straight face.

So in order to argue that the precedent of Loving v. Virginia forces states to adopt SSM (or "gender-neutral marriage"), proponents must completely strip Loving of precisely the national consensus that produced it in the first place! Warren held that because of a national consensus that racial distinctions were odious and invidious, marriage could not be restricted by race. But now SSM proponents argue that despite a national consensus that sexual-preferences are acceptable, Loving must be extended to same-sex marriages.

Such an argument turns Loving on its head and upends logic, consistency, and the rule of law in the bargain. Thus it cannot prevail -- except in the topsy-turvey, Alice In Wonderland worldview of contemporary liberals, for whom paralogia is too familiar a bedfellow to cause any fear.

Hatched by Dafydd on this day, July 14, 2006, at the time of 4:08 PM

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The following hissed in response by: KarmiCommunist

The Suwannee County's Probation Department, of Florida once sought to toss me back into Prison, because i was still living with a Woman. This, after i had lived with Her for more than a few years under Probation (Parole also?!? i forget...).

Anyway, i find this topic quite boring, after being in Playboy's "Price of Love" article. Decades ago...

PS. Responded anyway. ;)

The above hissed in response by: KarmiCommunist [TypeKey Profile Page] at July 14, 2006 4:52 PM

The following hissed in response by: Dafydd ab Hugh


If there actually were "overwhelming support" for preventing gays from voting, then they could pass a constitutional amendment to that effect, and my likes or dislikes would be irrelevant. But I trust the people more than I trust the judiciary.

I believe that massive changes in bedrock elements of Western culture or American tradition should only be undertaken when there is an actual consensus among the governed. Anything less -- especially when an unelected judge does it -- is a prescription for disaster.

Courts are inherently reactionary; you cannot lead with the court. The legislative and especially the executive branches are prescriptive: they should lead.


The above hissed in response by: Dafydd ab Hugh [TypeKey Profile Page] at July 14, 2006 8:59 PM

The following hissed in response by: MarkD


Consensus is a plurality of votes, and we measure it by elections.

We'll leave the complication of the electoral college for an extra-credit question.

The above hissed in response by: MarkD [TypeKey Profile Page] at July 15, 2006 5:38 AM

The following hissed in response by: Dafydd ab Hugh


A consensus is considerably more than a majority but less than unanimity. Not everything can be defined to the last digit.

Of the states that "still had laws against interracial marriages on the books," most had fallen into desuetude. Even many of those who prosecuted cases in jurisdictions where the laws were still enforced were embarassed by their actions. By 1967, states that actually enforced bans on miscegenation were laughingstocks.

As were states that actually enforced laws against "sodomy" as long ago as the 1980s, when I was on a panel in Arizona on the subject -- AZ being one of those states. I sat there and read the statutes and various cases that had been decided, creating pronounced hilarity in the audience.

If supporters of SSM really want to get "gender neutral" marriage, they need to start convincing the American people to vote for it, directly or through their legislators. Trying the end run of getting a court to ram it down our throats will backfire, creating animosity and outrage against gays.

If the people will not accept SSM at the ballot box, they'll be incensed if a judge tries to order it by fiat. It's a simple fact of life: in a democratic republic, as we have, with direct election of representatives and senators, the elites cannot simply dictate to the people.

(It would be a lot easier in a parliamentary democracy, where one votes for the party, not the individual.)

If we get a traditional-marriage amendment on the ballot here in California, and if it fails, and if the legislature subsequently enacts SSM... I wouldn't be happy, but I would accept the outcome as governance by the consent of the governed. I don't expect it; but I do expect the other side to adhere just as honorably to democracy when they lose as they do when they win.

That is the American way.

If you want SSM enacted, then start convincing us that America will be better off with it than without it. "Do, or do not; there is no 'try.'" -- Yoda.


The above hissed in response by: Dafydd ab Hugh [TypeKey Profile Page] at July 15, 2006 6:36 AM

The following hissed in response by: cdquarles

Another great post, Dafydd.

One additional thought. Marriage is also an expression of religion (protected by the First Amendment). Voting is not an expression of religion, and voting is handled by the States within the texts of the various State Constitutions and the 14th Amendment.

A final thought. There are no reliable external characteristics common to homosexuality that allow one to identify a homosexual outside of sexual behavior. There are some reliable external characteristics that allow one to identify one by race or sex. That fact underlies the invidousness of enforcing bigotry under color of law. Do not forget that Jim Crow was not limited to the South. Jim Crow was simply more open and honest in the South.

The above hissed in response by: cdquarles [TypeKey Profile Page] at July 15, 2006 10:14 AM

The following hissed in response by: Dafydd ab Hugh


There are no reliable external characteristics common to homosexuality that allow one to identify a homosexual outside of sexual behavior.

I am unwilling to hang my political hat on the coattails of current science. We may discover such "external characteristics" tomorrow; we may discover that some gays are genetically programmed to respond only to their same sex, while others are AC/DC and can swing either way.

(The existence of the latter is guaranteed; see, e.g., Freddie Mercury or the many "political lesbians," as my non-political lesbian friend Yvette calls them. We don't know about the former.)

Relying on science remaining static to buttress your political argument is what Roe v. Wade did -- saying that first-trimester fetuses were not "viable" outside the womb. What if they become viable via technology, as in Victor Koman's excellent novel Solomon's Knife?

A political opinion should be robust enough to exist on its own, regardless of whether future scientific study goes one way or another. Else you're in the position of having to be a prophet of the future.


The above hissed in response by: Dafydd ab Hugh [TypeKey Profile Page] at July 15, 2006 2:39 PM

The following hissed in response by: nk

There is a strong correlation between increase in consumption of ice cream and some other dairy products and increase in the number of sexual assaults. Does the ice cream cause the sexual assault or does the sexual assault create a craving for ice cream? Maybe hot weather is the causative factor? Maybe poor people have a greater need of the traditional family to insure the survival and well-being of their children?

The above hissed in response by: nk [TypeKey Profile Page] at July 16, 2006 7:08 AM

The following hissed in response by: JGUNS

Dafydd= Blogger of the year.

Tell your friends.

The above hissed in response by: JGUNS [TypeKey Profile Page] at July 16, 2006 10:36 AM

The following hissed in response by: cdquarles


I would hang my hat on it. With humans, biology is not destiny (I have 20 years of experience with human biology/physiology). Genotypes influence phenotypes but do not exclusively determine them, and remember, I'm talking about reliable external phenomena to ordinary senses, not high tech medical testing (which is subject to Type I and Type II errors).

Oh yeah, don't forget that I am not talking about sexual behaviors. I am talking about every day visual clues like skin color or overall physical appearance. Genetic "programming" can and is modified by the external environment and by chemical pharmaceuticals altering the internal environment.

The above hissed in response by: cdquarles [TypeKey Profile Page] at July 16, 2006 4:23 PM

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