Category ►►► Matrimonial Madness

November 17, 2011

Big Lizards Mini-Scoop: Major Court Ruling on Same-Sex Marriage Case

Big Lizards is the first -- among the teeny, tiny circle of blogs we read, I mean -- to break this major story. (Or rather, we would have been the first, if we hadn't bothered to edit this post; as it happened, while editing, another blogger in my tiny circle beat me to the punch, the dirty vole. I was momentarily tempted to just change the timestamp; but I'm pathologically honest, so my hands are tied.)

Background: Back in early 2000, during a primary election, California voters enacted Proposition 22 by a whopping 61% to 39%; the law defined marriage in the Golden State to be between one man and one woman, both for purposes of getting married here and also for recognizing marriages contracted in other states or countries. The wording basically mimicked that of the federal Defense of Marriage Act (DOMA).

But eight years later, the California State Supreme Court ruled, by the narrowest of margins (4 to 3), that Prop. 22 was unconstitutional under the state constitution. Then, in a fit of partisanship and pique, the court even refused to stay their ruling -- despite the fact that a new citizen initiative constitutional amendment, Prop. 8, was on the ballot for November of that year and seemed likely to pass.

Between that decision and the November vote, thousands of same-sex couples legally married in California; those marriages were never invalidated.

Despite the attempt to ram same-sex marriage down our throats, the citizens of this state fought back; even in the midst of the Obama landslide in California (he carried the state by more than 24%) -- and despite the state Attorney General (former and now current Gov. Jerry Brown), in a blatant attempt to bias voters, changing the title of the initiative to read, "Eliminates Rights of Same-Sex Couples to Marry" -- Californios nevertheless enacted Proposition 8, effectively writing Prop. 22 word for word into the state constitution... and neatly overturning the state Supreme Court's decision to spit in the voters' faces.

The vote this time was a narrower 52.24% to 47.76%... but that probably does not represent a drop in statewide support for traditional marriage; rather, it reflects the difference between a primary and a general election (more Democrats vote in the latter), and the Obamic surge that brought more liberals and Progressivists to the ballot box.

I'm sure you can guess the next step: Same-sex marriage fans filed lawsuits in both state and federal court, seeking to overturn the new constitutional amendment. The state Supreme Court upheld the amendment (what else could they do?); but U.S. District Chief Judge Vaughn R. Walker, who heard the federal case, Perry v. Schwarzenegger, ruled the constitutional amendment unconstitutional on August 4th, 2010 -- on the grounds that the United States Constitution mandates same-sex marriage throughout the entire country. Who knew?

(We knew during the trial that Walker was gay; but what we did not know until after his ruling was that he was in a long-term, committed relationship with his same-sex partner, thus in exactly the same class as the plaintiffs in the suit. If his ruling is upheld, he will have cleared the decks for his own same-sex marriage. Quite frankly, Judge Walker sat in judgment on his own case; but the current Chief Judge of that district court shrugs off the obvious conflict of interest. Nothing to see here, folks, just move along!)

Walker tried the same trick the state Supreme Court had used: He announced that he was going to lift the stay of execution on his ruling almost immediately, despite the fact that the ruling had been appealed to the Ninth Circuit Court of Appeals. The plan -- as in 2008 -- was to allow a huge surge of same-sex partners to marry in California, hoping that a future court would simply roll over and find a new ground to hold the marriage amendment unconstitutional: Because we would now be in a situation where many tens of thousands of people were in valid same-sex marriages, but the remaining tens of thousands were barred from marrying.

That is, first the state Supreme Court and then Judge Walker wanted to (a) set up a clearly unequal situation for same-sex couples, where many were married but the rest were prohibited from marrying, and then (b) use the very situation they themselves had concocted to argue that the law violated equal protection under the law! So it goes on the great Progressivist merry-go-round.

Fortunately, the Ninth Circuit itself stayed the ruling indefinitely, until the case could be finally decided, thus thwarting Walker's end run.

The case now sits at the Ninth Circus -- but a new wrinkle has arisen... and that is the subject of this post. (Yes, the preceding 500,000 words were just preamble and prolog.)

By law, the state Attorney General is required to defend citizen initiatives against lawsuits; but since he was Jerry Brown, a huge fan of same-sex marriage, he refused to perform his constitutional duty.

By law, if the Attorney General cannot or will not defend a law, then the governor is required to do it; but since the governor at the time was RINO Arnold Schwarzenegger, and since he too is a big supporter of same-sex marriage, he likewise refused to defend the law.

Whereupon, Judge Walker declared that nobody else had standing to defend the amendment; only the plaintiffs' side would be heard by the Ninth, and proponents of same-sex marriage would get to win their case by default.

(Again we return to the traditional Progressivist playbook: Rather than allow both sides to present their cases -- or, God forbid, allow the citizens of the state to decide what shall constitute marriage -- the Left always wants to stack the deck by banning all argument but its own. Don't look now, but Progressivists seem to be allergic to democracy and freedom of speech.)

The "defendant intervenors" -- that is, the original sponsors of Proposition 8, who undertook to defend their initiative themselves when Brown and Schwarzenegger gave voters the finger -- filed an appeal with the Ninth Circuit panel; but the Ninth punted, kicking the vital question of standing back to the state Supreme Court (which still supports same-sex marriage). And we have been waiting with bated breath their decision.

Until today. The ruling was just issued... and in an astonishing act of (heavens) following precedent, the State Supreme Court held that the defendant intervenors do have standing to defend the amendment!

Even more remarkably, the vote was unanimous, 7 to zip:

In a unanimous ruling, the justices sided with Proposition 8 sponsors, who've argued they should be able to appeal a federal judge's decision last year striking down the same-sex marriage ban because the governor and attorney general have refused to defend the voter-approved law. The state Supreme Court overwhelmingly agreed that Proposition 8 backers can go it alone in trying to preserve the gay marriage ban.

Here is the court's reasoning:

The Supreme Court was emphatic that it would "undermine" the California ballot initiative process if the governor and attorney general can trump the voters by declining to defend such laws in the courts.

"The inability of the official proponents of an initiative measure to appeal a trial court judgment invalidating the measure, when the public officials who ordinarily would file such an appeal decline to do so, would significantly undermine the initiative power," Chief Justice Tani Cantil-Sakauye wrote for the court.

So now we finally get to a decision on the actual merits: Does the U.S. Constituition mandate that every state must allow same-sex marriage? If so, then how about polygamy, group marriage, line marriage? Does the Constitution demand that every conceivable relationship between two or more persons must be considered a marriage, on the well-accepted legal argument that "love is all you need?"

Or do the people themselves -- even those who aren't lawyers! -- get to speak on this seemingly important societal issue? I know at least one famous blogger who supports same-sex marriage and voted against Prop 8 and Prop 22, but who vigorously opposes any and all attempts to legally overturn the voters' decision in court.

The Ninth-Circuit panel comprises ultra-liberal Judge Stephen Reinhardt (appointed by Jimmy Carter), Michael Daly Hawkins (Bill Clinton), and N. Randy Smith (George W. Bush); so my cynical guess is that they uphold Walker's ruling by 2-1. But no matter how the Ninth Circus decides, the case will surely be appealed to the U.S. Supreme Court -- where I believe the people will prevail by a 5-4 decision. And that should finally give closure to the issue of same-sex marriage: Each state will be allowed to decide for itself whether it will allow same-sex couples to marry and whether it will recognize such unions when licensed by other states.

So in the end, the people, as they should, will have the last word.

Hatched by Dafydd on this day, November 17, 2011, at the time of 12:59 PM | Comments (2)

October 27, 2011

Discriminating Discrimination

Shocking everyone, Democrats in the Senate have launched a campaign to repeal the Defense of Marriage Act, DOMA; this is the federal law that (section 3) defines marriage for federal purposes as only being between one man and one woman, and (section 2) -- most important -- allows states to refuse to recognize same-sex marriage (SSM), even when the couple is legally married in some other state.

Without section 2, the distinction between states that do and do not recognize SSM would be utterly lost, as any two persons of the same sex could marry in an SSM state, then demand that every other state in the United States recognize the union as the same as traditional marriage. We would lose a huge chunk of Federalism, as states could no longer define marriage as the citizens of that state decide; it would all be decided by Washington D.C.

So you can follow along on your scorecard, here is the complete law; well, the definitional part, that is:

Section 2. Powers reserved to the states

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

Section 3. Definition of marriage

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

By seeking to repeal DOMA, Senate Democrats signal the full and complete capitulation to the most radical of gay-"rights" leaders: They would rather destroy legal marriage itself, the very fabric of Western culture, than tolerate traditional marriage in any of the 57 50 states.

But that's not what I want to talk about. Yes, you read right; the entire post to this point has been nothing but preamble. Here is the part to which I intend to draw your intention... this quotation from the Washington Times story on the hoped-for death of DOMA:

The issue is bound to face strong opposition from Republicans, who would likely have the votes to filibuster the legislation should it reach the Senate floor. And it’s unlikely to make it to the GOP-controlled House at all.

But the measure comes at a time when gay and lesbian advocates are on a roll, having won repeal of the military’s “don’t ask, don’t tell” policy in Congress late last year.

I am appalled that even a somewhat more conservative newspaper has been sucked into the fantasy of a "gay movement," as if sexual orientation is a supercategory the gulps up everything even superficially related to homosexuality. But more properly, a veritable Valles Marineris gapes between, on the one hand, the demand for the end of "Don't Ask, Don't Tell" (DADT) and the overturning (by the Supreme Court decision in Lawrence v. Texas) of laws against "sodomy," however defined; and on the other hand, the shrill insistance upon federal legislation accepting and promoting SSM.

It's vital that America discriminate between the two species of demand:

1. Whether you agree or disagree with Lawrence -- which held that anti-sodomy laws violated "privacy rights" -- or with allowing gays to serve openly in the military, these claims are based upon the liberty argument: that people have a fundamental core of individual integrity, which cannot be subdivided, and inside of which governments cannot legislate.
Similarly, a law (federal or state) mandating vegetarianism would be an egregious violation of fundamental individual liberty, as would a law forbidding self defense or defense of one's family (or of any innocent person, for that matter).

Lawrence should have been based upon the First Amendment's freedom of assembly, rather than the amorphous and ill-defined (but trendy!) "right of privacy"; and the repeal of DADT should have been based upon the unenumerated but self-evident right of every citizen and legal resident to defend his country, society, and culture; it's a simple extension of the fundamental right of self defense.

2. Contrariwise, a demand for legal recognition of SSM (same-sex marriage) cannot be based upon simple liberty; for it entails not simply the right to be let alone, to be allowed to be oneself, but the demand that the rest of society embrace one's actions and declarations.

It's not that gays want the right to live together, to consider themselves married, or even to be declared married in the eyes of God, according to a particular church; for they already have those rights (and I completely support them). Rather, they demand not merely that you allow them to pursue their own happiness, but that you agree with and support their lifestyle... and that you consent to equate an outré sexual relationship with the traditional Western and American relationship called marriage.

(Not merely outré but antithetical to what I consider the main point of traditional, even more axiomatic than the raising of children: the union of the female and male elements of humanity, the yin and yang. Opposite-sex marriage serves to moderate the extremes of both sexes, producing a stable and fruitful (in several senses) society. By contrast, SSM tends to exaggerate the bad tendencies of both sexes, leading to extremism and even fanaticism.)

Enforced SSM sails directly athwart the First Amendment's guarantee of freedom of religion, speech, and association: If we're forced to equate same-sex couples with opposite-sex couples for purposes of marriage -- speaking of them as married, suppressing any religious-based criticism, and compelled to let them live together as if married, even in a room I might rent out within my own house -- then dissent from liberal orthodoxy is criminal, upon penalty of prosecution or administrative punishment.

Thus conservatives (I am not one) fall into grave error when they accept the idea that there is a "gay agenda," defined as the collection of all laws or policies that most homosexuals and many libertine liberals want to enact. Discrimination in this case is vital, and the real divide is between liberty interests (allowing the individual to live his life as he sees fit) and social reprogramming -- forcing society to transmogrify from the traditional American Borg culture into a limp, squishy, bowl of moral pablum, where all that matters is feeding the maw of every special-interest group temporarily important to the ruling class.

It's easy to draw the line between freedom of association and the right to defend oneself, one's loved ones, and one's society on the one hand, and the peremptory demand that all of us espouse the absurdity that same-sex relationships are identical to opposite-sex relationships.

It's like legally declaring cows to be vegetables, just so that everyone can be called a vegetarian.

Hatched by Dafydd on this day, October 27, 2011, at the time of 4:19 AM | Comments (2)

July 28, 2011

Right-Wing Folly, Another Reason Why I Am Not a Conservative

Two epigrams bubble up in my cerebrum at the moment. The first is just a statement of principle that seems to encapsulate the essence of Americanism; too bad so few on the side of goodness affirm it:

• For society's sake, it's best the consensus of the people sticks to the traditional values of monogamy, loyalty, decency, and faithfulness; but for liberty's sake, it's best that the people's government sticks to encouraging, not enforcing, such tradition.

And the other is more flip but equally true in my opinion:

• Extremism in defense of conservatism is -- still extremism.

A momentous civil-liberties lawsuit in Utah pits two opposing forces against each other, forever locked in battle unto the end of time (like that old Star Trek episode). Both sides spin their arguments around the Supreme Court case Lawrence v. Texas, like planets orbiting the same sun. On its face, the Court simply struck down all federal and state laws against "sodomy," however defined; it did not make any findings anent marriage.

But each side accepts the same central folly, spinning the consequences of of that supposition in opposite but equally extreme directions. Side A, which we generally call the Dark Side, abuses and twists that case pretzel-like in order to argue that laws banning polygamy are unconstitutional (as the same partisans also argue that laws banning same-sex marriage are unconstitutional); by extension, Side A argues that every state in the United States of America must immediately allow "plural" marriages.

The flip side -- which conservatives ironically call Righteousness -- uses the same argument used by polygamists: Some radical marital "reformers" make paralogical arguments, twisting the principle of simple liberty and "the right to be let alone" into a paeon to perversity; therefore, conservatives argue that liberty itself is suspect and must be curtailed. Side B ripostes that citizens must be legally prevented from doing icky things that might nauseate decent folk and frighten the horses.

But let's get less airy-fairy and more specific:

The suer is Kody Brown, who stars in a TLC "reality" show called Sister Wives, which I've never seen; the dissenter is Power Line's own Scott Johnson. And yes, on this subject, both are equally extreme and impervious to reason.

Brown argues from Lawrence that if a man has the right to cohabitate -- to live with -- more than one woman, then clearly he has the right to marry them all. That is a complete non-sequitur, of course; the principle of liberty means we can do as we please, so long as we're not harming others. In Lawrence, the Supreme Court found (albeit via flawed reasoning from the noisome Griswold v. Connectucut) a principle of liberty that it nevertheless true; it ought to be considered "self evident"... that there is a fundamental right to a zone of independence around each individual, inside of which government cannot intervene save to protect another and non-consenting individual.

That us, under liberty, if two adult men want to have intimate relations with each other, privately and without coercion, then government cannot arrest them for it. Likewise if one man and three women want to have intimate relations, or two men and one woman, so long as all are consenting adults. Prior to Lawrence, trysts of this sort were lumped under the label "sodomy" and were criminal acts under the laws of a number of states. For that matter, the same statutes often criminalized certain types of sex between husband and wife -- fellatio and cunnilingus, for example. It was an extraordinary, pre-modern burst of authoritarianism, now defended only by some movement-conservatives.

I assert that a government with the legal power to dictate what sexual positions a husband and wife, or any other group of consenting adults, can legally perform is a tyranny of the most grotesque and unAmerican sort, where citizens are owned by the State.

Yes, I know full well that the Founding Fathers, to a man, supported such laws against sodomy; they were wrong. They were misled by the emotional and religious baggage of their society and upbringing, which prevented them from seeing that the logic of their own arguments for liberty belied their emotional inconsistency, just as it belied acceptance of slavery and of state-established churches. Either one believes in freedom of conscience; or one believes that ultimately, the State can condemn you for dissent, thoughtcrime, or nonconformity. There really is no middle ground.

But granting the fundamental right to do something perverse does not obligate society to applaud the perversity: The same freedom of conscience that says I cannot stop Brown from living with three "sister wives" in addition to his legal spouse likewise prevents him from forcing me to sanctify such a relationship by calling it "marriage." But that is exactly what Kody Brown demands:

Reality-TV star Kody Brown and his “sister wives” may not intend to be an example of the “slippery slope” in the gay-marriage debate, but their new lawsuit against Utah’s anti-polygamy laws bolsters the argument that legalizing marriage for same-sex couples could open the door to recognition of other kinds of marriages.

Mr. Brown; his legal wife, Meri Brown; and “sister wives” Janelle Brown, Christine Brown and Robyn Sullivan, who appear with their 16 children on “Sister Wives” on TLC, want Utah’s anti-polygamy laws declared unconstitutional and unenforceable on their “plural family.” [Emphasis added -- DaH]

I readily admit there is a serious problem with the Utah statute, if it's being accurately and honestly reported by the Washington Times (and I have no reason to believe otherwise): The law evidently bans not only polygamy itself, the marrying of more than one wife, but something more sinister:

In the Brown lawsuit, Mr. Turley and Mr. Alba said the Brown family, members of the Apostolic United Brethren faith, has committed no crime except to live together, “motivated by their sincere religious beliefs and love for one another.”

States cannot “criminalize consensual intimate relationships, including homosexual relationships, between unmarried adults,” the lawyers wrote, citing the 2003 U.S. Supreme Court decision in Lawrence v. Texas.

And yet Utah has a law that forbids a legally married person from “purport[ing] to marry another person or cohabit[ing] with another person,” the lawyers wrote. [Emphasis added -- DaH.]

With this and other anti-polygamy laws, Utah “criminalizes not just polygamous marriages, but also an array of plural intimate relationships and associations of consenting adults,” Mr. Turley and Mr. Alba wrote.

In other words, the Utah law bans not only plural marriage, it appears also to ban plural living arrangements, even those not legally blessed as "marriage." Only one of the women with whom Brown lives is his legal wife; to the eyes of the law, the rest are just honeys.

The Brown family’s “basic liberties and equal protection” are being violated, they added, asking the court to “preliminarily and permanently” block enforcement of Utah’s laws that ban and criminalize polygamy.

I absolutely agree that the "basic liberties" of Brown and the individual women are violated by the Utah anti-polygamy statute, but only to the extent that it criminalizes living together. But I reject the "equal protection" argument, the ground used in most cases that seek to overturn the traditional definition of marriage; and in any event, the solution to the unconstitutionality of one part of a law is not to toss the entire law out, but to make the smallest possible change consonant with the demands of liberty, as enunciated by the Court.

In this case, toss out the part that bans "cohabit[ation] with another person," but keep the part that bans declaring such relationships legal "marriage." That is, ban polygamy but not shacking up.

This is where the logic of the Left flies to flinders: Under liberty, you can do a great many bizarre, outre, unconventional, kooky, or perverse things; but one thing you cannot demand is that society embrace and ratify your perversities and eccentricities, a democratic State's imprimatur and nihil obstat. You have the right to give yourself a high colonic with Liquid Draino, but it's a stupid idea; and don't expect me to shout "mazel tov" when you finish.

I would have thought it obvious: I am allowed to write what I please; but the State isn't required to support my writing or even give me a prize. In the immortal words of Thomas Jefferson, "duh!" But it appears that Brown believes that anything he has a right to do, he also has a right to demand official praise for doing.

In a freakish twist of fate, contemporary conservatives appear to have locked themselves into supporting the same paralogia, albeit to prove the opposite conclusion.

It seems monstrous to me to argue that any government, even at the state or local level, can put you in prison for using an unapproved sexual position in the privacy of your own home. But when movement conservatives argue that Lawrence v. Texas should be overturned -- as nearly all of them do -- that is precisely the position they stake out: They're all in favor of "individual liberty" -- but not when that means engaging in sex that conservatives don't like. Casual day has gone too far; there oughta be a law!

If it was simple prejudice, t'would a simple task to point out the hypocrisy; more than likely, a fair-minded person would admit being led astray by thinking with his heart, when the proper organ for such cogitation is further north. But our movement-conservatives (with whom I typically ally) buttress their glandular rejection of homosexuality and polyamory with specious, backwards reasoning: They argue that Lawrence must be wrong because it leads to overturning traditional marriage. Or as a pal of mine says, "It can't be true, because it would be so dreadful if it were true!"

In other words, conservatives typically argue that the liberal argument is right: If you have a right to cohabitate with anybody, that necessarily implies a right to marry anybody.

Therefore, you have no right to cohabitate. (Supposed "reductio ad absurdum.")

But the absurdity is not Lawrence v. Texas; the absurdity is inventing a nonexistent and inconsistent rule of inference, that allowing an action means approval of that action... the invalidity of which we surely have proven by now (ad nauseum).

But here is Scott Johnson making that exact argument in the Power Line post:

Now comes Professor Jonathan Turley to the defense of polygamy. Professot Turley represents one Kody Brown, a man, and his four wives and 16 children -- who, he notes in a New York Times op-ed column, are the focus of a reality program on the cable channel TLC called “Sister Wives.” One of the marriages is legal and the others are what the family calls “spiritual.” Professor Turley is lead counsel in the recently filed lawsuit challenging the constitutionality of the Utah law criminalizing polygamy....

Professor Turley relies for his argument on the logic of the Supreme Court’s 2003 decision overturning state sodomy laws in Lawrence v. Texas. Professor Turley has a point -- indeed, some of us criticized the Lawrence decision on precisely that ground -- though Justice Kennedy’s opinion waltzed away from the question of polygamy. And it didn’t even mention laws against bestiality and incest. Perhaps Professor Turley will undertake the glorious cause of extending Lawrence to them in another case.

The link, supplied by Scott himself, points to a Power Line post of his from 2003, just after the Court decided Lawrence. Here is the smoking gun:

In one sense the Supreme Court’s opinion today in Lawrence v. Texas, asserting the existence of a constitutional right to homosexual sodomy, was utterly predictable. Thirty years ago the liberal constitutional scholar John Hart Ely wrote a classic law review article (“The Wages of Crying Wolf”) condemning the jurisprudence of Roe v. Wade, and Lawrence is in a sense only a few steps further down the jurisprudential arc that will end, as Justice Scalia notes in dissent, in the constitutional right to homosexual marriage, prostitution, bigamy, and adult incest.

There is a trivial sense in which Scalia could be right; lawless judges can seize upon and twist the language of Lawrence to argue something radically different from the actual findings. However, the true source of Scott's position would seem not to be reason and logic but something more atavistic: a visceral loathing of certain icky kinds of sex (as opposed to other, more privileged positions and partners). He continues in lurid prose:

Among the founders, sodomy was universally condemned as a crime against nature. It was illegal in each of the thirteen states existing at the time the Constitution was ratified and the Bill of Rights was adopted. In Thomas Jefferson’s Virginia, it was a crime punishable by death. When Jefferson wrote an amendment to the criminal code lessening the penalty for sodomy, he nevertheless classed it as a crime with rape, polygamy, and incest.

Today the Supreme Court declares that homosexual sodomy constitutes “a form of liberty of the person in both its spatial and more transcendent dimensions.” Justice Kennedy, the author of this nauseating palaver, is obviously so in love with what he thinks is his own eloquent rhetoric that he fails to notice his laughable double entendre. What is not funny, however, is the destruction of the recognition of the laws of nature and nature’s God on which our true rights depend. The Supreme Court’s opinion today is an act of political destruction that should be recognized as such.

All that -- for holding that private sex between consenting adults is none of the State's damn business! It's a marvel Scott didn't toss in heresy, treason, crimes against humanity and the future, and the ritualistic summoning of the Elder Gods as further indictments. (I can only infer he was so hopping mad, he didn't think of them.)

So what do we have? The same conservatives who are outraged that the government dares tell them what to wear, how much to eat, where to recreate, who to choose as their doctors, how to finance and invest, and whether companies can fly corporate jets, now welcome (with gusto!) government control of sexual relations.

What's wrong with this picture?

The only distinction between the activities above is that the last is the most personal, the most intimate, and lies most thoroughly within the "zone of independence" of them all. Is the conservative argument that the more private and emotionally intimate the activity, the greater the authority of the State to control and regulate it?

Where else does that priority hold? What parents teach their children about right and wrong is surely more intimate and private than what they teach them about fashion and hairstyle; should the former therefore be subject to rigid governmental review and control, with only the latter trivia left to the discretion of individual parents? The argument is risible.

I wish I could call it a straw-man construction, but I can think of no other reason why conservatives argue that the State can tell us who to make love to -- but for God's sake, don't monkey with our Happy Meals!

But lose not sight of the point: Scott Johnson embraces the cri de coeur from fellow movement-conservative, Supreme Court Justice Antonin Scalia, that the freedom to be intimate with whom you want (rather than with whom the government allows) is logically equivalent to license to legally marry persons of the same sex, close relatives, and persons already married, and license to commit the inhumane crime of bestiality and even the horrific, violent crime of forcible rape! Yes, I can certainly see that those acts are all of a feather.

And where is Scott's argument why this should be so? It doesn't seem facially obvious to me. Would he likewise argue that if government allows nude beaches, we'll be constitutionally required to legalize public orgies in middle school? The route between point A and point B on the "slippery slope" seems no less preposterous than the connection between decriminalizing "sodomy" (in private, among consenting adults) and legalizing bigamy, same-sex marriage, consanguineous marriage, bestiality, and rape.

I don't know about Scott himself, but I speculate that for most conservatives, they have no real syllogism; their "thoughts" on this issue are actually feelings, emotional responses that have no, and need no rational explanation.

Where does this leave us? It's not the only issue on which conservatives can be as mulish and irrational as liberals. Immigration and drug policy are two others, but the worst is modern biological evolutionary theory. The last is the most similar example to conservative allergy to sexual liberty:

1. Many dyed in the wool atheists -- including Richard Dawkins, Chris Hitchens, Philip Pullman (of the wretched His Dark Materials books) -- insist that accepting the idea of evolution by natural selection requires one to reject God and faith and embrace atheism.
2. A large number of conservatives with inadequate scientific schooling -- including Ann Coulter, Glenn Beck, Michael Medved, Ben Stein -- completely swallow the liberal argument.
3. Therefore, being unwilling to reject God, they instead reject modern evolutionary biology, casting overboard more than a century of brilliant and apolitical science.

In fact, there is no logical or rational connection between allowing sexual freedom and requiring the definition of marriage to include any old relationship somebody might want; just as there is no reasoned conflict at all between biological evolution and faith in a theistic God, as Francis S. Collins conclusively proves in the Language of God; but there you are: Conservatives reject both as unthinkingly and reflexively as liberals denounce the Koch brothers, and for eerily similar reasons.

So I say again: Extremism in defense of conservatism is certainly less annoying than the liberal strain... but it's no less extremist -- and no more rational.

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

Hatched by Dafydd on this day, July 28, 2011, at the time of 7:25 PM | Comments (5)

June 25, 2011

Atlas Revived

Perversity's blowback as the savior of marriage

Now that New York State has approved same-sex marriage -- rather, now that the New York State legislature has done so, probably over the objections of a strong majority of its own citizen constituents -- we need a battleplan to hold the line against this becoming the norm.

Why? So what if the federal circus courts begin striking down the Defense of Marriage Act (DOMA) in this and that circuit, forcing states that oppose SSM nevertheless to have it de facto anyway. What's the big deal?

The "big deal" is that once same-sex marriage (SSM) has become nearly universal around the country, then we're going to see the same terrible effects on our society that we already see in Europe: diminished interest in marriage (it's no longer special), more domestic violence, even quicker divorces, a marked drop in the fertility rate, massive importation of fecund immigrants who have no loyalty whatsoever to the United States... and of course ever greater pressure to also allow polygamy and polyandry, group marriage, and so forth.

Pro-SSM people (like Patterico) are fond of making the argument that somebody else's SSM doesn't affect his own marriage; his marriage is still just as strong! Just as strong, perhaps; but not just as special as it used to be, not when any random association between two or more people of any gender can also be called a "marriage."

It's like counterfeiting money: If I print my own twenty-dollar bills, that doesn't physically change the real bills you have in your wallet at this moment; they don't magically change into newspaper, the ink doesn't turn a different color, Andy Jackson doesn't morph into George Soros. In that sense, my counterfeits don't directly affect your sawbucks... but my counterfeits indirectly devalue your real bills, creating uncertainty about which currency is real and which is fake, how much is out there, which is truly legal tender and which an ersatz copy that, if discovered, is worthless.

My counterfeit currency spreads fear, uncertainty, doubt. Private counterfeiting is as bad as rampant money-creation via the Federal Reserve; worse in the sense that at least the Fed must report on its activities from time to time.

By this analogy, traditional marriage is the currency backed by some form of specie, that which gives the institution of marriage itself the very cachet and social benefit that same-sex couples want to claim for their own. Contrariwise, any other form of union that is legally called marriage is the fiat or counterfeit currency; it piggy-backs on the real institution of marriage, hoping some of the moral, emotional, and sacred virtue rubs off.

Marriage is quite a special social institution; that's why it's the one to which we entrust child rearing. But to paraphrase Dash in the Incredibles, when everything is "special," then nothing is special.

So what to do, what to do? With the third largest state in the U.S. falling, I fear that train has left the station. Even if there is a later referendum in New York and the people reverse that decision, already hundreds of thousands of people across the nation will have flown to the Bug Apple and gotten legally married. And as we're finding out in California, you can't put the genie back in the bottle again, even if it was let out in despite of the voters.

You can't fight something with nothing; we need something positive to fight for, not just something negative to fight against; we can't allow ourselves to be put on the defensive by the Left and by libertarians who oppose legal marriage altogether. I believe there is only one answer: The Covenant marriage movement must become a popular front, just as the Tea Party movement already has.

Covenant marriage (CM) as a distinct legal institution arose comparatively recently, in response to the jump in the divorce rate in the 1980s. It differs significantly from normal legal marriage in ways that make it vastly more exclusive an institution:

• In a CM, couples must first undergo pre-nuptial counseling before they can marry.
• They agree to limit the grounds for divorce from the standard normal around the country -- if either party wants a divorce, that's grounds for divorce -- to a much narrower set of grounds, usually spousal or child abuse, felony conviction, or adultery. (If a state allows a CM couple to negotiate its own covenant, there can of course be more or fewer grounds for divorce.)
• Any CM passed by citizen demand would, by its enabling legislation, be restricted to the traditional definition of marriage -- one man, one woman. Creating a new form of marriage to exclude non-traditional groups of people being married is the only reason that CM legislation is likely to be passed in most states.
• CM is non-denominational and can be performed by civil authorities as well as religious; there's no religiosity requirement.

But how could CM become "the savior of marriage?" It's clear that the law cannot confer any greater legal status upon a couple married under CM than normal marriage confers upon the two, three, n-number of males and/or females who "marry" under that regime.

Yet that very point should make it harder for the courts to subvert CM: Same-sex couples (and later, groups of people larger than two) cannot argue that they're excluded from legal marriage, up to and including the name "marriage." They have the same legal rights and status, insofar as the secular law is concerned. Therefore, they have no legal ground to demand that Covenant marriage be forced to allow same-sex, polyamorous, group, incestuous, or under-aged marriages. The only difference between normal and Covenant marriage is that the latter has a number of restrictions not found in the former.

True, CM confers no more legal rights than normal marriage; but extra legal rights were never really the source of the specialness of marriage -- except perhaps the legal right for spouses not to testity against each other. (That last will certainly have to be revisioned when polyamorous marriages are allowed, unless we want entire Mafia families and street gangs to "marry" each other, so that nobody can squeal.)

No, the specialness of marriage has always flowed from its exclusivity and its permanence... which is why the Left has persistently attacked both those qualities by (a) twisting the definition of marriage towards making any association of any number of people a "marriage," and (b) making it easier and easier to walk away from a marriage upon the slightest pretext, provocation, or whim.

By restoring exclusivity and strengthening permanence, CM becomes the "real" marriage, and ordinary legal marriage just a trendy domestic partnership. And if that is how people begin to see it, we'll see more and more traditional couples getting married under Covenant, so they can demonstrate to the world their commitment to, and determination to work at, the union.

Ordinary legal marriage will persist, and will still confer the same legal status and rights; but it will probably fall into greater and greater disrepute among the majority: "Oh, you won't marry me with a Covenenant marriage? What, you want a back door out whenever you get bored with me? Drop dead, you creep!"

Women especially will have good reason to demand a CM or nothing: They know better than most men how vital is an intact family, with a male father and a female mother, when raising children.

A few caveats, none of which changes the basic equation:

• It's very unlikely that Congress will pass a federal version of CM. Nor should it. We have an enviable system of federalism; let it work! Each state can decide what exact kind of Covenant marriage to allow, if any, in its enabling legislation.
• Even if your state enacts a strong version of CM, it cannot make it illegal for one of the partners to move to another state, establish residency, and then get divorced under that state's no-fault divorce law that doesn't recognize the covenant. That's the price of liberty.

• There will never come a time when normal marriage is abolished altogether; because if it did vanish from a state, then the Left could once again raise the spector of "unequal treatment." Specious though it is -- gays and straights alike are constrained in who they can marry; neither can marry a sibling, for example -- the judiciary has signalled that it is ready to cram SSM down our throats, and to hell with voters.

  But that's a feature, not a bug; when state citizens must actually make a choice which type of marriage to enter into, they necessarily will have to think longer and harder about it that with a normal legal marriage. (As of course we all should, and do, if we believe it to be a solemn vow.)

Just as tea parties have swept the nation in a "popular front" -- and I believe I was the first person to so desribe them, back in February, 2010 -- I see Covenant marriage doing the same (with a vast overlap, most likely). And that means those of us who support traditional marriage no longer need wage a defensive war, trying to protect every state, city, village, and farm from the contagion of the "love bug," the untenable and cockamamie meme that "love is all you need" for marriage.

That bit of wrongthinking leads directly to our present discontent, the conclusion that any two or more people who "love" each other should be allowed to marry... men, women, siblings, fathers with their daughters, forty year olds with fourteen year olds, one man with eight women.

Instead, we can revert to the traditional American strategy of opening our own offensive. Rather than try to defend the status quo ante, we fight to implement a new form of marriage that is more exclusive and more permanent, bucking the leftist trend towards inclusion and impermanence. We slap both kinds of marriage on the table, then let the people choose. I predict that after an astonishingly brief time, "normal" marriage, with its unspecial universality and unserious provisional nature, will sink into desuetude, the last step before moribundity.

Americans may be many things, but not generally a mob: When the Left forces mob-rule upon us -- or more accurately, when they gin-up mobs to force tyranny upon the rest of us, with themselves as smug, self-satisfied tyrants -- we the people have a glorious history of rising up against them. This is true whether it's the tyranny of socialism, the tyranny of "diversity," or the tyranny of perversity.

As SSM spreads and infects more and more states, CM will grow alongside and surpass it in every venue. Soon the Obamunists will be fighting the defensive war, clinging to their "inclusive" definition of marriage. We achieve victory within the culture, despite -- even because of -- the Left's victory in the courts and legislatures. As an institution that is far more societal than legal, a solid victory within the culture is of much greater moment and future value than merely winning legal and legislative battles on the ground.

As the pushback becomes a wave, then a tsunami, and more and more states enact some version of Covenant marriage, then we'll once again have an exclusive and durable form of union to offer in preference to the liberals' and leftists marriage-lite. I sense that people, most especially young adults, have grown tired of weak tea and tolerance of everything, including intolerance itself. They crave something permanent, solid, bigger than themselves.

Give us Americans the choice, and I believe we will once again lead the rest of the world out of its moral morass.

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

Hatched by Dafydd on this day, June 25, 2011, at the time of 10:16 PM | Comments (10)

June 13, 2011

(Same) Sex, Lies, and Videotape

Shockingly, AP has chosen to trivialize today's hearing seeking to overturn former federal Chief Judge Vaughn R. Walker's ruling that declared California's definition of marriage as traditional marriage unconstitutional. The defendants are asking Chief Judge James Ware to rule that Walker should have recused himself from the case because of conflict of interest.

In the case, Perry v. Schwarzenegger, two same-sex couple plaintiffs -- Kristin M. Perry and Sandra Steir, and Paul Katami and Jeffrey Zarrillo -- sued to overturn the voter-approved, citizen's constitutional amendment Proposion 8. Prop 8 passed very strongly in 2008, despite the leftist trend in California; through the citizens initiative constitutional amendment, voters declared that only traditional, opposite-sex marriage will be valid or legal in the state.

In response, Judge Walker issued a sweeping ruling in Perry that the United States Constitution mandates same-sex marriage. (The ruling only formally applies to the Northern District of California; but if the reasoning is generally accepted by the courts, it would apply equally throughout the state, and indeed throughout the entire country.)

The defendants, defending the initiative, argue that Walker (nominated in 1989 by George H.W. Bush) should have recused himself from the case. Not because he is gay, which was fairly well known; but because he was secretly in an undisclosed, long-term, committed, same-sex relationship, thus very likely to have an interest in marrying his companion if Prop 8 were overturned. He did not disclose his relationship until he had retired from the bench -- after striking down the amendment.

Defendents argue that, in other words, Walker should have recused himself because he was acting as "judge in his own case."

Defendants have made it quite clear from the beginning that the problem is not being gay; the problem is being in the very class of people most affected by the ruling: People for whom there is a strong presumption they want to marry their same-sex partners.

But of course, the Left's best strategic line of attack is to smear anyone opposed to same-sex marriage as a bigot and "homophobe;" and the best tactic in service to that strategy is to caricature the defendants' objection to Judge Walker as the mere fact that he is gay. Surprise, surprise, the Associated Press plays ball.

They begin with an honest recitation of the argument:

Lawyers for the sponsors of the voter-approved ban asked the chief federal judge in San Francisco to vacate a decision issued by his predecessor last year that declared Proposition 8 an unconstitutional violation of gay Californians' civil rights.

They maintain that former Chief Judge Vaughn Walker should have recused himself or disclosed his relationship status before trial because he and his partner stood to personally benefit from Walker's verdict.

But in all subsequent reference, they revert to form:

Ted Olson, one of the lawyers for the two same-sex couples who successfully sued to overturn the measure, said he was unaware of any other cases in which a ruling was challenged because of the issuing judge's sexual orientation. He called the move to disqualify Walker frivolous and demeaning and said that expecting judges to reveal parts of their personal lives when hearing gay rights cases would set a dangerous precedent.

"What would a judge do who was Mormon knowing the Mormon Church took such an active role" in campaigning for Proposition 8, Olson asked. "What would a judge who had a nephew or niece or son or daughter who was gay or lesbian do? We have an unlimited number of permutations of what a judge might be asked to disclose."

Well, all right; a nasty smear; but they're just quoting Ted Olson -- it's not the AP's editorial voice!

But then there's this:

Many legal scholars have said they do not expect Ware to overturn Walker's decision. They point out that while having a judge's impartiality questioned because he is gay is new territory, efforts to get women judges thrown off gender discrimination cases or Hispanic judges removed from immigration cases have failed.

In this case, the vague phrase "many legal scholars have said" clearly means "we at the Associated Press, along with all progressive-thinking people, emphatically state that...." The tip-off is the tendentious, misleading, and inapt equating of defendants' recusal request in this case and "efforts to get women judges thrown off gender discrimination cases or Hispanic judges removed from immigration cases" -- two obvious cases of bigotry, sexism, and racism. The analogy is not crafted to illuminate the issues in the case; it's purpose is to villify the defendants.

Judge Walker's handling of the trial truly lived down to his "show trial" intentions. Initially, there was a strong possibility that there would be no defendant at all. Generally, the state attorney general defends any state law from lawsuits to overturn it; barring that, the governor defends the law.

But Gov. Arnold Schwarzenegger, despite being named as defendant in the case, refused to defend the lawsuit. And of course Attorney General Jerry Brown (now California governor) was equally unwilling to defend either traditional marriage or the citizens-initiative process.

Without a defendant, the case would have been decided via summary judgment; but that did not serve the propaganda purposes of Vaughn Walker: He wanted a chance to stage-manage the trial to issue pronunciamentos, lectures, hectors, and especially a huge series of "findings of fact" that would forever enshrine same-sex marriage as a fundamental constitutional right. Thus he allowed the Alliance Defense Fund to represent the backers of Prop 8 as defendants, giving him a forum to pontificate.

He indeed issued his findings of "fact" by the bucket full, characterizing them (with astonishing arrogance) as "beyond any doubt" and "beyond debate." But after issuing his all-encompassing diktat, defendants became a liability. So in a stunning move, he simply wished them away.

Walker issued a ruling that the backers of Prop 8, the very defendants that Walker himself accepted as advocates for the proposition in his own courtroom, no longer had standing to file an appeal to the Ninth Circuit Court of Appeals! In fact, Walker went on to rule that nobody had any standing, and therefore his decision was unreviewable by the appellate courts or by the Supreme Court.

Then he retired from the bench, mission accomplished.

(The question of whether a judge can first rule and then declare that his ruling is beyond all review is still pending; the Ninth Circus awaits a decision from the notoriously left-leaning California Supreme Court, which itself previously struck down the earlier citizens initiative, Prop 22. It was the state Supreme Court's overturning of Prop 22 that forced voters to return to the polls and pass traditional marriage all over again, this time as a state constitutional amendment. Now that same court holds the key to whether anybody is allowed to appeal Walker's verdict. What could possibly go wrong?)

But back to examples of Walker's indisputable findings of "fact" about same-sex marriage. He found as a "fact" that beyond any doubt, children raised by two fathers but no mother, or two mothers but no father, were just as well off as children raised by a mother and a father.

I have discussed the "studies" that purport to show that either mothers or fathers (or both?) are dispensible; every one of them relies upon the subjective opinon of teachers and counselors, or worse, the subjective self-report of the same-sex parents themselves. ("Hey, is your kid well adjusted?" "Heck yeah!")

But there are quite obviously many objective measurements of such children that could be undertaken that would be much more dispositive and credible, from behavioral problems, drug and alcohol abuse, arrest records, and aggressiveness/passivity; to graduation rates, marital history, health, economic well being, psychological adjustment, and socialization; to sexual preference of the children, religiosity, and political activism and orientation.

Oddly, secular psychologists and sociologists appear to have shied away from conducting any studies based upon objective criteria; yet they repeatedly publish "studies" based entirely upon the subjective reports and self-reports noted above. Sometimes, you just have to wonder.

Vaughn Walker also held as an undisputed "fact" that opening up the definition of marriage to same-sex couples has no impact on opposite-sex marriages. Not only is this disputed, it is at the very heart of the popular resistance to same-sex marriage in the vast majority (90%) of states in the United States.

The damage is not direct, of course; if Vaughn Walker marries his live-in lover, it will not cause Sachi and me to divorce. But there is a definite and measurable indirect impact on all real marriages from allowing counterfeit marriages to fly under false colors. That impact is is exactly analogous to the impact of counterfeit money on real money: The value of money (or marriage) itself is devalued when the term is granted, willy nilly, to items that don't deserve it, whether hundred-dollar bills printed by some guy in his basement or a marriage between two guys or two gals.

The value to society of an institution like marriage is precisely its exclusivity; being married improves one's life not directly because a cleric or clerk utters a few words, but because the status of being married indicates that two people have achieved a specific standard of relationship.

In academia, being an A-student means that the student has learnt the material well enough to achieve an A on tests and projects. It's a reasonably good predictor of future academic success because it represents past academic success. But if teachers change the standard to give an A to any student who even attempts the test, no matter how good or poorly he does, then being an "A-student" will become meaningless; and it will no longer be a good predictor of how well that student will do in his later career at an institution that doesn't grade on good intentions.

Similarly, if any old relationship between X adults of either gender, for any old purpose whatsoever, can be called a marriage, then being "married" is meaningless; and it will not predict anything at all about one's future life.

If you'll recall, on the question of whether Walker, in a committed, long-term, same-sex relationship, should have recused himself from deciding whether same-sex marriage is mandated by the United States Constitution, AP weighed in by equating the question to whether any female judge must recuse herself from hearing a case of gender discrimination, and whether any Hispanic judge must recuse himself in any immigration case. The analogy is argumentative and a risible reach from the facts in the Walker case.

I can think of a much better analogy, closer to the issue but equally clear. It also has the advantage of being neutral, unlike the AP's handwaving.

Consider a lawsuit seeking to overturn laws against bigamy by arguing that they are unconstitutional. Now the judge doesn't tend discuss his religion, but suppose it's known that he is a Mormon. I would absolutely agree with the plaintiffs in that case that mere membership in the Church of Jesus Christ of Latter Day Saints (LDS) is not sufficient to require the judge to recuse himself. (For one reason, the LDS church prohibits polygamy and has for more than a century.)

But suppose after the judge rules in favor of the plaintiffs, striking down the law against polygamy, he reveals that he's a member of a heretical Mormon sect that endorses "plural marriage." And suppose we discover that he's married but has lived for years with his wife and another woman, all of which he successfully concealed throughout the trial.

I believe there is a strong supposition he hopes to be able to marry his second wife, thus we could make a good case for an extreme conflict of interest. How say you then about recusal?

It's hard to read the tea leaves on this one. Judge Ware appeared to attack both sides' arguments, according to another AP story.

In any event, we should know by tomorrow; according to Aaron Worthing at Patterico's Pontifications, observers of the hearing tweeted that Chief Judge Ware said he would rule within 24 hours.

If I had to guess, I would place a bet (and give odds) that Ware will not overturn the Walker decision, if for no other reasons than that the current Chief Judge identifies very strongly with his pal, the former Chief Judge; and that what we see as the arrogance of an out-of-control judiciary, Ware sees as the firm hand of judicial wisdom guiding the country to a more just, equitable, nondiscriminatory, and progressive America. They are two peas of a feather.

Hatched by Dafydd on this day, June 13, 2011, at the time of 9:50 PM | Comments (1)

June 8, 2011

What's In a Name?

I'm in the midst of writing a big, weird post sure to offend 82% of Big Lizards readers (the 82% who foolishly expect our blogposts to be in good taste); but something horrible just occurred to me.

Evidently, Huma Mahmood Abedin, Anthony Weiner's wife, chose to keep her maiden name when they married. I can certainly understand why: The prospect of going through life forever known as HumaWeiner must be daunting indeed.

Having dodged that dreadful bullet, she should certainly be up to the task of salvaging the mere marriage.

Hatched by Dafydd on this day, June 8, 2011, at the time of 4:09 PM | Comments (0)

February 24, 2011

Misrule by Decree

Yesterday, President Barack H. Obama decreed that the popular surge for restricting marriage to the traditional definition was unconstitutional; further, that the popular Defense of Marriage Act was likewise unconstitutional; and he forbade his racially discriminatory Attorney General, Eric Holder, from defending any anti-DOMA lawsuit that disgruntled gay activists might bring:

“The president has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny,” Mr. Holder said. “The president has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion, the president has instructed the department not to defend the statute in such cases. I fully concur with the president’s determination.”

All I can say is -- thank goodness! Three cheers for Obama's moral resolve and newly grown spine -- because that smirking trick of his clears the decks for for legal challenges to be answered by attorneys for House and Senate Republicans, who actually support traditional marriage and oppose the same-sex inversion of marriage.

Back to Lucky Lefty, the Obamunist. Note the traditional liberal hubris and megalomania: First, he is not content to leave findings of constitutionality to the courts; Obama has discovered somewhere in Article II of the Constitution a clause that allows him to nullify, by presidential diktat, any federal law he dislikes, even though duly enacted by Congress and signed by the president. Second, he seemingly could not care less what voters in the United States think about the definition of marriage; he has concluded that SSM is cool with him, and the rest of us should simply fall in line.

But it's not as if he even believes that he can prevent such defenses, thus forcing -- as the state of California and its new (and its former) governor are trying -- to deny all potential defenders standing, then eighty-six the laws due to lack of defense. Rather, the administration seems almost giddy at the thought of Congress defending traditional marriage, while the president attacks it:

The decision effectively throws the defense of DOMA into the lap of Congress, which can instruct its own attorneys to defend federal laws. Mr. Holder said he had informed members of Congress of the decision so that “members who wish to defend the statute may pursue that option.”

Supporters of traditional marriage immediately called on the Republican-majority House to intervene in the DOMA lawsuits.

“With this decision, the president has thrown down the gauntlet, challenging Congress,” said Family Research Council President Tony Perkins. “It is incumbent upon the Republican leadership to respond by intervening to defend DOMA, or they will become complicit in the president’s neglect of duty.”

Many on the left are likewise giddy to the point of vertigo, calling the president's principled act of unprinciple a tremendous victory for the forces of radicalism and transformation, hastening the eventual Europeanization of the United States.

But not so fast; lefties may be missing the point.

When the Attorney General or the Soliciter General of the United States undertakes to defend a law under constitutional assault, the courts surely consider that defense much more seriously than some outside, third-party, amicus curae brief; I'm sure they privilege those arguments, since it's the official policy of the United States. Thus, if the administration's defense is deliberately lame and incomplete, the law stands in grave danger of being overturned... even if a better argument was available but unused.

And evidently, the administration has been doing exactly that, offering an intentionally impaired defense of DOMA while ignoring winning arguments that have prevailed in state cases, hoping that the feds' feeble efforts will "fail" to uphold DOMA; the crafty Obamunists will then have gotten a major policy change while leaving their own hands clean, thus sidestepping voter vengeance:

While it was sudden, Wednesday’s move did not come out of nowhere. Opponents of same-sex marriage had grown increasingly frustrated with the administration for what they called its underzealous defense of DOMA and its omission of key arguments.

In a brief filed Jan. 13 in defense of DOMA at the 1st U.S. Circuit Court of Appeals, the Justice Department states that “the administration supports repealing DOMA,” but that the department must do its job to defend the law “as long as reasonable arguments can be made in support of their constitutionality.”

Brian Brown, executive director of the National Organization for Marriage, told The Washington Times recently that he suspected the administration of purposely tanking its case.

“They purposely avoid arguments that are winning time and time again in court,” he said. “Even scholars on the other side of this issue have said, ‘What is going on here is wrong.’ Anyone who cares about constitutional government should be very concerned about what’s happening in the DOMA case.”

But Obama, Holder, and the entire administration are now openly at war with traditional marriage while aiding and abetting same-sex marriage, and congressional conservatives have been given the green light to vigorously defend the sanctity and necessity of a legal marriage being between one man and one woman. That very fact means that DOMA has a much greater opportunity to be upheld yet again.

Inadvertently, the tremendous victory is ours, not theirs, a gift from the smug and cocky Left. As usual, "Progressivism" overreaches and draws back a stump, setting itself up for voter blowback as well.

Thank you, mask man!

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

Hatched by Dafydd on this day, February 24, 2011, at the time of 6:53 PM | Comments (6) | TrackBack

January 6, 2011

The Conspiracy to Murder Marriage - Phase II

Phase one of the conspiracy to murder marriage is the attempt, largely successful in many "developed" countries, to expand its definition to include same-sex couples (SSM); we all know how that's going: Cultural elites want it; the "people" reject it whenever they're allowed a vote.

But the obvious next phase has already begun in Canada (one of those nations whose rulers now wholeheartedly endorse SSM): The Supreme Court of British Columbia is currently hearing a case that argues Canada's laws against polygamy are now also invalidated. In other words, as warned by supporters of traditional marriage -- and despite vigorous denials by proponents of SSM -- redefining marriage to include same-sex couples immediately opens the door to polygamy as well:

The challengers of Canada's anti-polygamy law say that the nation's 1982 Charter of Rights and Freedoms gives people the right to practice "plural marriage...."

[Besides the breakaway Fundamentalist Church of Jesus Christ of Latter-Day Saints, FLDS,] people who practice Islam, Wicca and other religions also are adversely affected by the anti-polygamy law, Vancouver lawyers George K. Macintosh, Ludmila B. Herbst and Tim Dickson said in a brief to the court.

But former members of polygamous communities have complained to Canadian authorities that they were victims of crimes, such as sexual exploitation and forced marriages, often when they were still minors.

Mr. Jones noted the social ills that accompany polygamy, or more correctly, polygyny, in which a few men have multiple wives. The FLDS does not marry women to multiple husbands. These include social pressures to drive excess males out of the community, while preparing younger females for marriage, regardless of their ages or wishes, Mr. Jones said.

So what if Canada changes its law? How does that affect us? Pretty directly, as a matter of fact:

The hearing is being watched closely both for its relevance to religious freedom issues and same-sex marriage. The Vancouver lawyers said Canada's 1890 polygamy ban is out of step with its modern understanding of marriage, which now includes same-sex marriage and offers protections for co-habiting couples.

Other legal observers suggest that if Canada jettisons its anti-polygamy law, other countries could be affected. If foreign jurisdictions, such as U.S. states, recognize same-sex marriages from Canada, for instance, they could be sued to force recognition of Canada's polygamous families, too.

Note that such "recognition" could easily grow to include American men who sojurn up in B.C., marry multiple wives, then hop back down to the United States... particularly if progressivists have their way and get the U.S. Supreme Court to overturn the federal Defense of Marriage Act (DOMA).

And if you combine polygamy (or more generically, since we wouldn't discriminate on the basis of sex, polyamory) with sex-neutral marriage, you have the prospect of group marriage, in which any group of people can claim to be married. As I noted before, wouldn't criminal gangs routinely marry themselves, so that nobody in the gang could ever testify against anyone else in the gang?

It took me a while, but a year or so ago I finally hit upon the perfect analogy to SSM, to explain how it damaged and devalued all marriages, including traditional: SSM to traditional marriage is as counterfeit money to real money.

Suppose some criminal floods the United States with counterfeit bills tomorrow (you can include fiat money issued by the Federal Reserve, if you like). Now look at your own pocketful of legitimate currency. Have the physical notes changed? Is Alexander Hamilton now winking or wearing a beret?

Of course not; the money in your wallet is physically unaltered from yesterday. However, the value of all currency, including yours, has been diminished, debased, and devalued, by the introduction of bogus currency... it's not worth as much, because there's too much of it -- and because much of it is just funny money.

It's the same with SSM: When the definition of marriage is expanded to include many other relationships never contemplated by the vast majority of people who are married, then marriage loses its "specialness," its exceptionalism. As more and more relationships between two or more people are called by the same name of "marriage," eventually the institution loses all meaning whatsoever; "we're married" becomes synonymous with "we hang out with each other and receive monetary benefits," nothing more.

(By the way, those benefits would be forced even upon private parties by the government, state or federal: If an employer or service organization offers benefits to some married employees or members, then it cannot discriminate against other "married" employees or members; for example, employers who offer health-care benefits to spouses of employees would have to offer them to all the wives and husbands of employees in polyamorous multiple-sex marriages, with no upper limit.)

If you believe, as the vast majority of Americans do, that there is something unique and precious about the merging of male and female individuals (not mobs) in matrimony -- whether you consider it holy or just a vital way for Western civilization to propagate its ideology of liberty, equality under the law, and Capitalism -- then it's time to get off your assets and do something to protect it from a tragic martyrdom at the hands of the politically correct. Look to the northern skies to see what's in store here if we don't fight.

But why is the radical Left so anxious to debase marriage? The real goal, I am convinced, is not the "expansion of marriage" to those poor, discriminated-against gays and polyamorous swingers; rather, the real endgame is destruction of the institution of marriage itself. As George Orwell noted in his novel Nineteen Eighty-Four, perfect socialism cannot allow any force within society to be stronger than the State, including the forces of sex, marriage, and family; all must be ruthlessly stamped out, undermined, discredited, or subverted, so that all familial feelings transfer to the State -- whether that means the nation, as with Fascism, or the world, as with international socialism or Communism. Local sources of power and individual or family strength must disappear.

Three revolutions are necessary to transform us, as President Barack H. Obama wishes, into a true socialist State:

1. Love must be channeled into meaningless (and non-seditious) sex, preferably profane and pornographic. (Nothing you would take home to Mother.)
2. The institution of traditional marriage in the Western liberal democratic mode must be annihilated as a potential basis for counterrevolution. ("Everything within the State; nothing outside the State; nothing against the State.")
3. And children must be divorced from their parents and raised by the State. ("It takes a village.")

(1) has largely been accomplished by commercial advertising and the arts and farces sponsored by the National Endowment for the Arts. (2) is well underway in Canada and many European countries, as well as throughout the Islamic ummah. And we have already seen (3) in many "advanced" socialist countries, such as Red China, Nazi Germany, and Castroated Cuba, and the policy is often praised and demanded by the elites of social progress.

Thank goodness for American exceptionalism... which itself is under assault right here in America. So it goes.

Either we fight and win, or we fight and lose, or we simply roll over. What's it to be then?

Hatched by Dafydd on this day, January 6, 2011, at the time of 5:25 PM | Comments (4) | TrackBack

October 26, 2010

Brownrise

This is just heartbreaking. The entire rest of the country is swinging to the right; the U.S. Senate race in California is swinging to the right. But in the midst of such positive news, GOP gubernatorial nominee Meg Whitman's campaign is collapsing... and it looks pretty clear that California voters are poised to elect Jerry Brown governor -- again.

Dubbed "Governor Moonbeam," Brown is widely derided as the worst governor of California in modern times. He is a radical leftist who, along with the solidly Democratic-Progressive state legislature, has virtually pledged to do to Californios exactly what Barack H. Obama and the solidly Democratic-Progressive Congress did to America... and Californians are on track to hand him a historic victory to speed him along!

Why? I'm completely at a loss to explain why Carly Fiorina, the Republican Senate candidate, is doing so well, but Whitman so badly: The latest Rasmussen poll (just out today) has Brown 9 points up, an increase of 4 points from the corresponding poll ten days ago. The RCP average now has Whitman losing by 7.4%, and that includes a Republican outlier poll that had Whitman up 1 point in mid-month... exactly one week before the election, with momentum moving against her and towards Jerry Brown.

I hate to sound like Sen. Harry "Pinky" Reid (D-Caesar's Palace, 95%), but at this point, I have to say this race is all but lost. Jerry Brown will once again be our governor -- at a time when the state is more than $20 billion in the red.

Another point: Brown, as the current state Attorney General, is one of the two officials who refused to defend Proposition 8 in court. Prop 8 is the voter-passed citizens'-initiative constitutional amendment that re-established the definition of marriage to one man plus one woman... overturning a decision of the California Supreme Court, which -- by the slim and unconvincing margin of 4 to 3 -- redefined marriage to include same-sex marriage. (The other official to refuse to defend Proposition 8 in court was... current RINO Gov. Arnold Schwarzenegger).

Brown was also the official (by himself, this time) who reluctantly accepted the initiative, titled "Limits on Marriage" -- and retitled it to be more neutral, unbiased, and non-argumentative.

He made it "Eliminates Right of Same-Sex Couples to Marry," and that's how it appeared on the November 2008 ballot. Amazingly, it passed anyway.

So what can we expect with Gov. Brown and the hyper-liberal legislature? A number of lovely prospects present themselves:

• The California state income tax rate, already the second highest in the nation (after Hawaii), will surely leapfrog into the winner's circle. Most of us pay 8% to 9.3% with the break point about $47,000/year; I suspect over the next two years, this will skyrocket to 10% to 12%.
• Currently, we have a de facto mortgate interest deduction, because the California tax basis starts from the federal tax basis. But there are several other instances where a federal deduction is added back in for purposes of state tax... and I gloomily predict that the new government will add mortgage interest to that disreputable list. That will push the effective tax rate much higher.

• Too, Democrats in this state have been desperate for years to overturn the 1978 Proposition 13, the "People's Initiative to Limit Property Taxation." Prop 13 did the following:

  • Rolled property assessments back to 1975 values
  • Set the property tax rate at 1% of the assessed value
  • Limited property-tax increases for continuing ownership to 2% per year
  • Required a 2/3rds vote in each legislative house to raise taxes
  • Required a 2/3rds vote for local governments to create or raise special taxes

  It was enacted, over the vigorous opposition by then-Gov. Jerry Brown, by an overwhelming margin of 64.8% to 35.2%... because the California state and local governments had begun a wild series of property-tax increases that were literally forcing people (mostly retirees) out of the homes they had lived in for decades; and local districts were assessing special tax after special tax to pay for every liberal wish-list item that some lobbyist demanded. This immensely popular California initiative constitutional amendment sparked a tax revolt all across the United States.

  That was then; this is now. In the last debate between Brown and Whitman, moderator Tom Brokaw asked both disputants about Prop 13; Whitman said she would defend it to the hilt, but Brown waffled, saying everything, including Proposition 13, was "on the table." I take that to mean that his intense opposition to protecting homeowners from the rapacious maw of the government has neither wavered nor waned.

  And now that Jerry Brown has learnt that such initiatives can be overturned without a vote by a cunning trick -- get an ally to challenge it in court, then refuse, as governor, to defend it -- I suspect Prop 13 is going to be shredded... and the record number of foreclosures we have already seen in this state will go through the roof.

• Brown is a skinflint in his personal finances, but a typical left-liberal spendthrift when he's handling other people's money. During that debate, he passionately defended Obamacare, both stimuli, and the government takeovers of the automotive and banking industries. He added that Obama had done a "great job" in his first two years. I strongly suspect that Brown intends to saddle California with state socialism that mirrors the federal version... and will endure even when the Republican Congress and White House wipe it away in D.C.

• Worse, Proposition 25, on the ballot this election, will give Jerry Brown the whip-hand on spending. Currently, legislators in Sacramento need a 2/3rds vote to pass the annual budget. The Democrat/Republican mix in the state Senate is 24 Democrats and 14 Republicans (plus two vacancies), or 63% to 37%; in the Assembly, it's 50 Democrats, 27 Republicans, and 1 "Independent" who caucuses with the Democrats (again plus two vacancies), or 65% to 35%.

  In other words, under the current constitutional rules, Democrats do not have sufficient votes to pass a budget on their own in either chamber; they need at least two Republican votes in the Senate and one in the Assembly. And so far, the CA-GOP, against all expectation, has held firm, forcing concessions from the Left and preventing the progressive rampage we have seen in Washington D.C.

  So what does Prop 25 do? It lowers the budget-vote requirement down to a simple majority. If it had been in place all this time, we would probably already have government-run health care, cap and trade, a massive increase in welfare and MediCal, public-employee union pensions that are even higher than the already stratospheric pensions we have now, and three or four times the current amount of make-work spending in the state. Instead of being $20 billion in debt, we would have $50-$60 billion in red ink.

  As insane and left-partisan as this initiative is, it will probably pass... because its authors found another cunning trick: Included in the measure is a "punishment" for legislators who don't pass a budget on time... they lose their salary for every day the budget is overdue. "Yeah, let's punish those foot-draggers!" is the battle cry.

  But of course, what's causing the impasse is that the two parties are lightyears apart on how to save the state's economy: Republicans want to restore fiscal sanity; Democrats want to redouble their Keynesian stimulus schemes. But if Prop 25 passes, I guarantee the budget will be on-time... because the majority Democrats won't even bother consulting with the Republican minority. They'll just enact any stupid, self-immolating, progressive idiocy that passes through their pinheads. Great solution, voters! You sure showed those profligate Democrats!

• The traditional definition of marriage will almost certainly be changed to include same-sex marriage, despite two separate majority votes of the citizenry to keep it as it has always been. Jerry and his pet legislators desperately want it, to pay off their gay-activist lobbyists.

Thank you, thank you, California voters. I've always wanted to live in a Zimbabwean failed state. Think of the wonderful experience I'll get, assuming I want someday to write a post-apocalyptic novel about the catastrophic collapse of a once-great civilization.

There are only three slim hopes for Ms. Whitman:

1. The polling could be wildly off, if (for example) all the polls are using the same wrongheaded turnout model. If, for instance, fewer women than expected vote while more men do, that would make the actual vote much closer than the polling... possibly even put Whitman on top.
2. The Republican "wave" effect could raise all boats, including the waterlogged and listing tugboat at the top of the ticket.
3. If Whitman's ground game is ever so much better than Brown's, she could make up a lot of the deficit right there.

But let's not kid ourselves; none of those is all that likely... unlike in Carly Fiornia's case, where she can easily overcome her 3.7% deficit (not counting the Democratic PPP poll). Thus I must make the sad prediction that on Wednesday, November 3rd, we in the Golden State will most likely wake up to find it has become, overnight, the State of Brown.

Hatched by Dafydd on this day, October 26, 2010, at the time of 6:10 PM | Comments (3) | TrackBack

September 10, 2010

Companion Piece: Risible Racism vs. Gender Benders

Same-sex marriage (SSM) activists frequently cite the Supreme Court decision in Loving v. Virginia, 388 U.S. 1 (1967), a unanimous ruling that overturned all anti-miscegenation laws across the United States by holding that marriage was "one of the 'basic civil rights of man,' fundamental to our very existence and survival," and that laws banning mixed-race marriage violated both the due process and equal protection clauses of the U.S. Constitution. SSM activists argue that if marriage to the person of one's choosing, regardless of race, is a fundamental right, then so too must be marriage to the person of one's choosing regardless of gender.

But there is a flaw in this first, naive version of the argument: No right is absolute, not even fundamental ones; they are simply held to the strictest scrutiny, with the state or feds having to show:

• That the government has a compelling interest in the law, that it is vital and necessary, not merely desirable;
• That the law itself is narrowly tailored to accomplish that purpose without branching out into irrelevancies;
• And that the law uses the least restrictive means of achieving that purpose.

Laws which pass that three-pronged test can and do limit even fundamental rights. For example, we limit the fundamental, First-Amendment right to the free exercise of religion in various ways, such as prohibiting Christian Scientists from denying urgent medical care to their children or prohibiting human sacrifice, even of willing victims.

The brighter SSM radicals recognize this problem, so they attempt to get around it by denying that the State has any legitimate "compelling government interest" in promoting opposite-sex marriage over same-sex marriage (or, one presumes, in promoting two-person marriage over polyamorous marriage). In particular, they argue that:

1. There is no possible reason to prefer opposite-sex marriage over SSM other than the purely religious, specifically the Judeo-Christian and Moslem belief that homosexual acts are an "abomination."
2. Yet such a sectarian interest constitutes an "establishment of religion" and cannot possibly pass the "strict scrutiny" test.
3. Therefore, the traditional definition of marriage is prohibited by the First Amendment.

I fully support the Court's decision in Loving v. Virginia: Given the clear meaning of the words of the Civil Rights Amendments and their obvious application to racial equality, the Court made the right decision. But I utterly reject its application to SSM.

Is this inconsistent or irrational? Not in the least: There is a bright line between the two that should be obvious, even to the activists themselves.

There is no possible compelling interest in preventing mixed-race marriages other than perpetuating "racial purity" and ultimately "racial supremacism." Yet there is no significant biological difference between the "races," and it's frequently hard even to distinguish between them.

Biologists cannot even generally define a "race"... there is no specific scientific guideline to judge how dark one's skin can be while remaining "white," or how narrow a nose can be while still being "African," nor even exactly what percent African, American Indian, Causasian, or Oriental descent makes a person that race: If one great-great-great grandparent of African ancestory makes one black, then why don't the other thirty-one great-great-great grandparents of European ancestory make that same person white? (Is white blood that much weaker than black blood? Did any racist ever think this argument through?)

Similarly, there is no inherent or genetic difference in how different races think, behave, or reacts; all such differences are cultural or driven by will. Even if one buys the premise of the Bell Curve, which I do not (yes, I read the book), a supposed difference in intelligence is not the same as a difference in how one thinks, behaves, or reacts.

Thus we long ago concluded that legally, there is no essential difference among people on the basis of race. And therefore any racial classification or racial law is inherently invidious and requires the absolute strictest of scrutiny.

In the case of laws banning miscegenation, no compelling government interest other than the even more vile racial supremacism or separatism has been offered for banning mixed-race marriages... so such laws clearly fail the test of "strict scrutiny" and were rightly struck down as unconstitutional.

Contrariwise, only the most radical of radicals would dispute the essential difference between men and women. The claim itself is preposterous: Men can impregnate, women cannot; women can give birth, men cannot.

Moreover, much scientific testing has discovered profound differences in the way men and women think, behave, and react; and as any parent knows, such profound differences begin at birth (some say even earlier) -- so they are not simply constructs of an oppressive society, as the most radical feminists argue.

One can easily find many compelling government interests in promoting traditional marriage over SSM (and over polyandry):

• To raise the fertility rate, so our population doesn't dwindle (as it has in many European countries), causing society to collapse.
• To provide a more stable, well-rounded environment for raising children, thus lowering crime, drug use, and other socially destructive behaviors.
• To mate the aggressive male personality with the loving female personality, in order to civilize the former and embolden the latter.
• To prevent the objectivization and abuse of women by restricting men to but one wife, not the harems we find in, e.g., the ummah and among primitive tribal cultures.
• To promote marriages that tend to last longer and be more stable -- as research clearly shows traditional marriages do, compared to same-sex or polyamorous marriages -- which in turn makes society itself more stable.

Each of these interests is compelling in itself; and traditional marriage promotes all of them. And please notice one point: Not a single one of these listed compelling government interests is in any way driven by religion. In fact, I myself am not in the least religious, yet I support all of them.

So yes, marriage to the person of one's choice is a fundamental right; but both laws that prohibit racial discrimination in marriage and laws that define marriage as between one man and one woman clearly pass the "strict scrutiny" test. We can prohibit racial separatism and supremacism, saying there is no essential difference between the so-called "races," without having to profess the absurdity that there is no essential difference between the sexes. The two claims are worlds apart.

Hatched by Dafydd on this day, September 10, 2010, at the time of 2:19 PM | Comments (4) | TrackBack

Don't Sue, Don't Judge

Two positions from the Lizards:

1. We both strongly believe that marriage should be restricted to opposite-sex couples, not currently married to anyone else, not too closely related, of age, and consenting. But we believe even more strongly that the definition of and rules for marriage for each state should be decided by the legislature, governor, and ultimately the people of that state... not by unelected, life-tenured federal judges.
2. We both strongly believe that openly gay men and women should be allowed to serve in all branches and capacities of the United States military, and we have said so, often and loudly -- perhaps to the detriment of readership, which is quite unified against our position. But we believe even more strongly that such a profound change must be made democratically by Congress and the President of the United States... not by unelected, life-tenured federal judges.

So even though we agree with the fundamental position of the Log Cabin Republicans that Don't Ask, Don't Tell should be repealed, we fundamentally deplore and reject the injudicious judicial process the LCR chose to "repeal" it.

Hatched by Dafydd on this day, September 10, 2010, at the time of 9:50 AM | Comments (0) | TrackBack

August 26, 2010

Pyrrhic Evictory - the World Nods to the Lizards

We published a post titled "Pyrrhic Evictory" a couple of weeks ago, just a week after Judge "Dredd" Walker issued his August 4th ruling -- a date which will live in infamy -- that the traditional definition of marriage is and always has been unconstitutional. Walker's ruling would have come as a great shock to the authors of the Constitution; if the original Federalists were alive today, they'd be spinning in their graves.

In that post, I suggested that one of the most immediate serendipitous fallouts of the ruling would be in the race for California's governor, between the former eBay CEO Meg Whitman in the Republican corner, and the former worst governor in California history, Democrat Jerry Brown. (Actually, I believe he still defends the title.) Why this race in particular? Because Jerry Brown, now the Attorney General of California, flatly refused to defend the voter-enacted, state constitutional amendment Proposition 8 in court. Working in concert with "Republican" Gov. Arnold Schwarzenegger, Brown hoped that by the pair's refusal to defend the law, it would be swiftly overturned in federal district court by default judgment.

But Judge Dredd had other plans: He intended to hold a show trial to humiliate opponents of same-sex marriage (SSM), and no two elected pantywaists were going to thwart him! Accordingly, Walker allowed standing as defendants for a group called ProtectMarriage.com, the group that brought Proposition 8 to the ballot and got it enacted.

However, directly the show trial ended, Walker announced that in his august (and August) opinion, ProtectMarriage.com inexplicably lost the standing Walker himself had granted them, presumably on grounds that they're nothing but a bunch of bigots and homophobes... as proven by the fact that they dared defend Proposition 8. Consequently, Judge Walker has essentially ordered the Ninth Circuit and the Supreme Court not to accept any appeal of or writ of certiorari anent his Prop 8 decision... now that the urgent task of making a statement in favor of SSM is already accomplished.

This brings us, by a commodious vicus of recirculation, back to my prediction. In case you've forgotten in all the excitement, I predicted a fortnight ago that the ruling would terribly damage Jerry Brown's re-gubernatorial campaign, since he was one of those who said the people should not be represented in a case about -- the constitutionality of an amendment enacted by the people.

Today, the first post-Dreddnought Rasmussen poll was released... and Meg Whitman has leapt from -2 against Brown the day before the ruling -- to +8 today. That's a 10-point surge for the next governor of the Golden State.

Now some of that is simply that Brown's aggressively slanderous campaign against her had pretty much ended (except on Power Line <g>). The charges were not merely false but ludicrously so, and voters wised up fairly quickly. But since then, Whitman has come out foursquare in favor of Proposition 8, stating that when she is governor, she will defend it vigorously. I cannot but attribute at least some significant portion of her remarkable climb to the epic battle to defend Proposition 8 and traditional marriage.

Even many voters who opposed Prop 8 and support SSM are nevertheless beside themselves with outrage at the way the federal judiciary simply swatted aside a huge, statewide vote of 13.5 million citizens -- with the active connivance of our liberal Democratic state Attorney General and "Republican" governor. Patterico, of P's P, is one of them; he supports SSM and voted against Prop 8... but he accepts the finality of the vote, at least until a later vote might overturn it. (At which point, I would sadly accept the finality of that vote, and would fight to defend it against judicial tyranny.)

Patterico represents many tens of thousands of citizens, here and in every other state. Outraged Californios are already taking out their frustrations on Jerry Brown, and I predict a lot more will pile on by November 2nd. (Schwarzenegger is term-limited out, which is why Brown and Whitman are tussling over his soon to be former office.)

Even for supporters of SSM, the Prop 8 shenanigans perfectly mirror the genesis of what we have been calling the popular front for Capitalism and against government expansion: When the people vote, then berobed overlords unvote our vote with no better reason than their "superior, enlightened" vision -- then the proper response is first to chuck out all the bums who support those judges; and then, with a friendlier Congress, to impeach the kritarchs and kick out the JAMs. Via Rasmussen (and very soon other pollsters), the world is visibly catching up to our Big Lizards prediction. As Browning put it:

No more playing defense with those who would sell out our liberty for their power. Starting today, let us prey.

Hatched by Dafydd on this day, August 26, 2010, at the time of 4:34 PM | Comments (0) | TrackBack

August 18, 2010

Update to Previous Post...

I have just read that the three-judge panel of the Ninth Circus will not be the same judges -- Edward Leavy, Michael Daly Hawkins, and Sidney Runyon Thomas -- who ruled in favor of a stay on Judge "Dredd" Walker's appalling diktat. I have no idea who the new panel will comprise.

But... I stand by my prediction that the panel, no matter who is on it, will overturn Judge Dredd's decision and uphold Proposition 8 and the traditional definition of marriage. If the panel comprises two liberals and a moderate (likely), or three liberals (plausible), the vote will be two to one. If it's three moderates or conservatives (hah), it will be unanimous.

Hatched by Dafydd on this day, August 18, 2010, at the time of 12:37 AM | Comments (0) | TrackBack

August 17, 2010

Wild Prediction: 9th Circuit Panel Will Uphold Prop 8

Sometimes, you just have to go with your gut feeling, no matter how strange and irrational it may seem.

What is a gut feeling? For one, it's a misnomer: Mine at least are not based on "feelings" (and don't originate from my intestines) but represent a sudden premonition that X is going to happen, even when I cannot consciously see a logical path from here to X. But that doesn't mean one doesn't exist; often, after a few days, I can start to see the rational basis for the prediction... meaning it wasn't a "gut feeling" but rather a rapid, subconscious calculation from available evidence drawing a rational, if obscure, conclusion.

That doesn't mean my subconscious calculations are always right! But I generally see that they're not irrational, either.

In this case, I've had the gut feeling -- I mean subconscious calculation that the three-judge panel of the Ninth Circus hearing the appeal of Judge "Dredd" Walker's decision striking down California Proposition 8 and finding a federal constitutional right to same-sex marriage, SSM, hitherto unknown to the mind of Man -- a panel comprising one very moderate Republican appointee of Ronald Reagan, Edward Leavy, and two ultra-liberal, Democratic Clinton appointees, Michael Hawkins and Sidney Runyan Thomas -- will not only find that Prop 8 defenders have standing... it will actually uphold Prop 8 by a 2-1 decision.

(This prediction naturally supercedes my previous prediction that the three-judge panel of the Ninth will uphold Judge Walker's decision.)

I have refrained from mentioning this to anyone until I could figure out what my subconscious was telling me; but I think I have it now. I don't for a moment believe that either of the two Clinton appointees opposes SSM; for that matter, it's entirely possible the Reagan appointee also supports it, in theory.

But support for SSM is not necessarily the "issue" for any of these judges:

• Leavy, the Republican, may very well support SSM but nevertheless believe that voters have the right to vote the other way; that is, Leavy may very well take the same position as Patterico. If so, then he will vote to overturn Judge Dredd's decision and uphold Proposition 8.
• And either of the two Democrats may decide that SSM isn't the real issue... the real issue is the November 6th, 2012 election. If either arrives at that conclusion, he would likely decide that forcing SSM down the throats of the American West, hence potentially forcing it upon all of America, will so alienate moderate and independent voters that Barack H. Obama is defeated for reelection, and the Democrats are all but wiped out in in 2012, threatening many much more important liberal projects on the economic, social, union, and military fronts. It could be 1980 all over again.

Note that the decision can't affect the election this November -- though Walker's earlier decision can, will, and already is -- because the appeal will not even be heard until December. But judges, especially federal judges with life tenure, are much more forward-looking than congressmen, especially representatives, for whom two years is a lifetime. I'm sure both Clinton appointees expect still to be on the bench after 2012 (Hawkins is 65, Thomas is 57).

Yes, I realize I'm suggesting that one of the super-liberal Clinton appointees, Hawkins or Thomas, might decide a momentus constitutional issue on the corrupt basis of looming partisan advantage. What's your point?

I'm making my prediction, and I'm sticking to it. I may be wrong; but at least I now recognize that I'm not acting from emotion, not a "gut feeling," but rather some deep undercurrent of rational thought.

Hatched by Dafydd on this day, August 17, 2010, at the time of 1:50 PM | Comments (0) | TrackBack

August 16, 2010

An Unanswerable, Five-Word Response to Judge Dredd's Claim that Prop. 8 Proponents Have No Standing to Appeal His Decision (Why Yes - It's Shorter Than This Title!)

Judge "Dredd" Vaughn Walker recently hinted rather strongly that the defendants who defended traditional marriage and Cailfornia Proposition 8 in Perry v. Schwarzenegger have no standing to appeal, now that the judge has washed his hands of their arguments.

Walker opined (his target audience is the Ninth Circuit three-judge panel) that nobody but Gov. Arnold Schwarzenegger and state Attorney General Jerry Brown had standing to file an appeal of Walker's gift to same-sex marriage supporters.... knowing full well that both had already refused to defend Prop 8 or file the appeal. (Yes, that Jerry Brown; the former ultra-liberal governor of California who served after Ronald Reagan.)

According to the Los Angeles Times:

To have standing in federal court, a party must show that it has suffered an actual injury, and Walker said no evidence suggests that the campaign would meet that test....

"Proponents may have little choice but to attempt to convince either the governor or the attorney general to file an appeal to ensure jurisdiction," Walker wrote.

Picture a sitting federal judge sticking his tongue out at California voters.

Message received: The notorious Ninth, the most liberal federal appellate court in the land, has developed a sudden fascination for the question of standing; deciding Prop. 8 defenders had none would allow the panel to dismiss the appeal without even bothering to review the merits of Walker's decision (hat tip to Le-gal In-sur-rec-tion and Allahpundit at Hot Air). Quoth the three-judge panel:

In addition to any issues appellants wish to raise on appeal, appellants are directed to include in their opening brief a discussion of why this appeal should not be dismissed for lack of Article III standing.

All by way of preamble; but I have a response to Walker's argument that (1) only the governor or the state Attorney General has standing to appeal his order; but since (2) they both applaud his decision and refuse to appeal it, then (3) proponents of Prop. 8 and traditional marriage can go eat worms. My response is just six words long, but I see it as quite unanswerable:

If Judge Walker is right, and nobody willing to appeal the ruling is allowed to appeal the ruling, then... who speaks for the people?

Seven million California voters voted for Proposition 8; who speaks for them?

The whole point of a citizens' initiative is to allow the voters themselves to enact reforms or repeal tyrannical laws, even when elected officials are corrupt, out of touch, or unwilling to listen. But if the governer can overturn such an initiative merely by refusing to defend it in the inevitable lawsuit, allowing opponents of the initiative to win by default, then the entire point of a citizens' initiative is thwarted. (George Will would be overjoyed.)

At the federal level, the president could do the same thing, effectively overturning legislation passed by Congress and signed by the (then) president, but which the current president dislikes: Simply refuse to defend the law in court, giving himself retroactive veto power over laws already enacted. What a sweet way to amend the constitution without having to amend the constitution.

This is liberalism; this is the "hope and change" that Barack H. Obama promised. This is what the Left does, its forte: If you voted for Obama or a third-party candidate, then this is the world you wrought.

 

 

 

...Miss him yet?

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

Hatched by Dafydd on this day, August 16, 2010, at the time of 9:28 PM | Comments (2) | TrackBack

August 13, 2010

The Distinction Goes Sub Silentio

Paul Mirengoff of my favorite blog (P - - - - L - - -) admirably faced what I've come to call the Question... a childish retort that inevitably bubbles up whenever one undertakes to defend the traditional definition of legal marriage against the tendentious redefinition that gives us the non-sequitur "same-sex marriage."

The Question is, of course, "If you applaud the courts overturning anti-miscegenation laws in Loving v. Virginia, how can you decry the courts overturning anti-gay-marriage laws in Perry v. Schwarzenegger? Doesn't everyone has the right to marry the person he or she loves?"

(Answer: No, no more than everyone has the right to be the most popular person on campus.)

It's a smug and juvenile argument tarted up as a question; it's equivalent to a born-again atheist demanding to know whether God can make a rock so big He can't lift it, and doesn't that paradox prove an omnipotent deity cannot exist?

(Answer: No; it just means Mr. Atheist has too simplistic a notion of "omnipotent.")

Paul answers the question as would a lawyer, oddly enough:

Loving v. Virginia did not implicate the definition of marriage. The largely regional ban on inter-racial marriages was not founded on the belief that such unions cannot be marriages under the nearly universal understanding of what a marriage is (i.e., between a man and a woman). Rather, the ban was based on the notion that, although it is possible for blacks to be married to whites under that understanding -- just as it is possible for blacks to sit on the front of a bus -- such marriages represented an undesirable mixing of the races.

The decision in Loving no more changed the definition of marriage than allowing James Meredith (a black) to attend the University of Mississippi changed the definition of "student," or requiring the lunch counter at Woolworth's to serve blacks changed the definition of "customer." But recognizing a marriage between two men (say) changes the definition of "wife" (say). [And changing the definition changes the concept itself. --DaH]

To me, the notion that a constitutional amendment mandates, sub silentio and plainly without intent, such a monumental change in an institution as fundamental as marriage is, as I said, ludicrous.

Having been involved in the Marital Wars for years before even Proposition 22 trundled along in the year 2000, I have long since had to come to grips with the Question. But being a lifelong non-lawyer, I am quite certain I never essayed an answer that contained the phrase "sub silentio." (It's legalese for "without saying;" I looked it up.) I've had to answer the Question in mortal terms, but I think I've boiled it down pretty well:

We cheer Loving v. Virginia (1967) because it struck down legal antebellum relicts of irrational and despicable racism... the idea that we must stop the "mingling of the races" to avoid breeding "race mongrels." We have long since adopted the credo that there is no intrinsic or essential distinction between the races -- whatever those are.

But nobody in his right mind can argue that there is no intrinsic or essential distinction between men and women. Any parent knows that boys are worlds apart from girls; any human being knows (excepting only hermits who have never met anyone of the opposite sex) that women and men think differently, react differently, argue differently, take revenge in different ways, hate differently, and yes, love differently.

Marriage has always been, by definition, the union of opposites -- man plus woman (or some number of women); the synthesis is more than the sum of its parts. Thus, same-sex marriage is logically inconceivable... like a monochrome checkerboard, a coin with only one side, or a debate between proponent and proponent: By its very nature, marriage requires at least one member of each sex, or else it isn't a marriage... it's just a partnership or merger.

Get it?

I see nothing wrong with sexual, emotional, and financial partnerships of all sorts; enjoy! But such unions that involve only one sex are not marriages -- and redefining the word "marriage" won't change that fact.

If you call a cow's tail a leg, how many legs does she have? Four, of course, because calling a tail a leg doesn't make it one.

Got it? Good.

Hatched by Dafydd on this day, August 13, 2010, at the time of 11:57 PM | Comments (5) | TrackBack

August 11, 2010

Pyrrhic Evictory

Still thinking -- fuming -- about Judge "Dredd" Walker's insipid decision, in Perry v. Schwarzenegger, to render of no account the democratic vote of 13.5 million Californios, out of pique that we didn't vote as he wanted us to do. I have something somewhat profound to say (not very, just somewhat); but let's preface with a couple more predictions...

First, I suspect that Judge Walker, as Chief Judge of the United States District Court for the Northern District of California, assigned himself to hear the case against Proposition 8. According to numerous con-law professors, constitutional scholars, and working attorneys who have read Walker's opinion in that case, it's clear he was biased against the law (and its proponents) from the beginning and never took seriously any of defendants' arguments in support of it.

Who will be chosen for the three-judge panel of the Ninth Circus that will likely hear the appeal of Judge Walker's decision? The current Chief Judge of the Ninth Circuit is Alex Kozinski, who was nominated by Ronald Reagan and appears (by his list of political contributions back in 1992) to be a Republican. But selection of the panel is random, I believe; and unlike the "random" selection of liberal judges, I suspect Kozinski will actually obey the rules.

Considering that the Ninth is notorious for being the most left-liberal circuit in the entire United States (also the most overruled by the Supreme Court, for what it's worth), it's likely that at least two of the three judges on the panel will be ultra-left judicial activists. Ergo, I predict that the three-judge panel will uphold Judge Walker's decision.

So the next question is, will the Supremes accept certiorari on this case? I predict Yes: The constitutional implications of throwing out a statewide vote supporting values that are literally millennia old, and substituting one judge's radical opinion which would fundamentally alter society, are so extreme that the final Court really must pass muster on such a momentous decision.

And the last prediction: Assuming the Court takes up Perry, how will it finally rule? As I think I mentioned, I expect the usual suspects to line up as, well, as usual: Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito will vote to uphold Proposition 8; Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagen will vote to overturn it and declare same-sex marriage (SSM) a fundamental right; and the tie-breaking vote will once again fall to Justice Anthony Kennedy, the Swingin' justice -- who, I predict, will reluctantly vote, with much hemming and dithering, to uphold the vote of the people on Prop 8. Thus I predict that the Supreme Court will overturn the district and circuit courts and reinstate the state constitutional amendment.

Now, on to the semi-epiphanic predictive analysis of some degree of profundity...

Democrats and liberals seem never to have even heard the term "pyrrhic victory;" certainly they have no idea what it could mean. By its very nature, the liberal philosophy is superficial, immediate, with a studied refusal even to consider consequences -- not merely the unanticipated but even the obvious and inevitable.

Liberalism is the Scarlett O'Hara of political philosophies: "I won't think about that now, I'll think about that tomorrow." So the idea of a "victory" that comes at such a terrible cost that it's actually a defeat is utterly alien to liberals; even when it happens to them, they don't recognize the connection to their own scorched-earth policies. But they're about to get a crash education.

A bit of history. The first traditional-marriage citizen's initiative enacted in California was Proposition 22 ten years ago; it passed by 61% to 39%.

After it was struck down by the California Supreme Court, the replacement Proposition 8 -- the same wording, but this time a state constitutional amendment -- passed by a weaker margin of 52% to 48%; but that vote was held in November 2008, during the Democrats' Obama-driven landslide victory across the country.

And specifically in California, where Barack H. Obama won by 24 points, 61% to 37%. Despite a massive Democratic victory in California's presidential race, congressional races, and state legislative races, the anti-SSM amendment nevertheless won by a statistically significant margin. (Even though the final polls of all three major pollsters here -- SurveyUSA, Field, and the Public Policy Institute of California -- showed Prop 8 losing.)

In other words, regardless of what people tell pollsters, when it comes to an actual vote, Californians strongly support traditional marriage and oppose same-sex marriage.

But along comes the liberal Bigfoot, telling us that our votes are irrelevant; state citizens have no right to determine the definition of marriage in California; and we peons should simply roll over and play dead when our robed betters bark. Slice it however you like, this judicially activist decision is not going down well in the state; Californians are angry and getting angrier by the day, even those who voted against Prop 8.

It's one thing to lose an election; it's quite another and a bitter thing to have the electorate itself slapped down by a liberal schoolmarm, wagging his finger in our faces and telling us to sit quietly and wait for judicial command.

No question about it, this is going to damage the campaigns of Democrats across the state; but particularly in the governor's race... where Republican former eBay president and CEO Meg Whitman squares off against the Democrat, former California governor and current state Attorney General Jerry Brown.

Why this particular race? Consider this: In his capacity as state AG, Brown is supposed to defend California laws against lawsuits; but because Brown is an ultra-liberal, and because he personally supports SSM, he declined to mount any defense of Prop 8. Had Brown had his way, plaintiffs in Perry v. Schwarzenegger would have been unopposed. (Not that it would have made any difference, since Judge Walker never seriously considered the defense, spearheaded by the "official proponents of Proposition 8 led by Dennis Hollingsworth," as Wikipedia put it.)

Thus the Democratic candidate is the very man who violated his oath and betrayed his state, just in order to screw California voters! The judicial activism of Judge Walker cannot possibly be ought but a boot to Jerry Brown's head -- especially in a year when the entire country (including California) is already appalled by the expansion both of the government's size and cost and also its intrusiveness.

At the moment, in the most recent poll -- Rasmussen, taken before the ruling -- we see Jerry Brown 2% ahead of Meg Whitman. That's within the margin of error; Gen. Brown got that slight "lead" by a massive campaign of slimy attack ads against Whitman... running on TV, on radio, in the newspapers, and in a number of prominent political blogs (including, sad to say, Power Line). Tellingly, Brown himself is actually polling lower today in Rasmussen than at any time since March; he just managed to pull Whitman down six points, while he only pulled himself down three, turning a Whitman +1 into a Brown +2.

In the next poll (or perhaps the one after, when voters start to mull over the ruling and Brown's role in egging it on), I expect to see that at least reversed, and maybe an even stronger movement by Meg Whitman. I believe that she is going to start using Jerry Brown's duplicity, disloyalty, and scorn for his own potential voters against him in her own TV adverts. (And I sure hope she starts buying ads on Power Line!)

Worse, I expect to see many, many Republican challengers, from Carly Fiorina challenging Sen. Barbara "Call me senator!" Boxer on down the ballot, also using the Democrats' complicity in disenfranchising thirteen and a half million California voters as a bludgeon in the "massively multiplayer" version of Whack-a-Mole, where each and every Democratic talpid has his or her very own GOP mole-masher standing directly over the mole hole.

Thus -- pyrrhic victory: Liberals, Democrats, and the loony Left "win" the court case, at least at the lowest, district level; but in so doing, even more of them than expected will find themselves evicted from their cosy offices and cushy deals, at least in the state of California.

Judge Walker's manipulative meddling may end up forcing the exact opposite effect he intended: It may elect a governor and Attorney General who will actually fight for Prop 8 in the courts... unlike the "Saboteur" General and the "Bad Samaritan" governor we have right now.

Hatched by Dafydd on this day, August 11, 2010, at the time of 11:58 PM | Comments (3) | TrackBack

August 9, 2010

The "Screw the Court" Constitutional Amendment

I would love to see the following offered on January 3rd, 2011, in the 112th Congress of the United States, as an amendment to the U.S. Constitution:

I'm not a lawyer, though I sometimes play one in my bathroom; so I might not have all the legal higgledy-piggledy exactly correct. But the intent is this: To amend the U.S. Constitution to make it plain that:

1. Each state will determine its own definition of marriage for state purposes... not the federal courts or the U.S. Congress.
2. The federal government will stick with the traditional definition of marriage being between one man and one woman.
3. No state will be required to recognize or respect a same-sex, polygamous, or polyandrous marriage, even if such are recognized in some other state.

As liberals, they can still argue that their own state should define marriage to include same-sex unions... define, that is, by citizens' initiatives, state legislatures, state courts interpreting the state constitution, or however that state accomplishes such determinations; and nothing in this amendment prevents them doing so.

The amendment doesn't compel any state to recognize same-sex marriage, but it allows each state to do so, on its own. It only stops the feds from bullying the states, and stops other states from bullying their neighbors.

To vote against this amendment -- is to vote in favor of one's own state being forced, willy-nilly, to dance to some other government's tune. I reason that after the shellacking the Democrats will take in the 2010 elections, they will be too gunshy to vote to allow the federal courts (or next-door states) to define marriage for their own state, against the wishes of their own constituents.

Astute readers will recognize sections 2 and 3 as the guts of the Defense of Marriage Act, which is still currently federal law (1 U.S.C. § 7 and 28 U.S.C. § 1738C); though a number of federal lawsuits seek to overturn it. If this amendment passes, that will moot those cases, as an amendment to the U.S. Constitution is constitutional by definition. (I reversed the order of the two provisions to put the state and federal definitions next to each other.)

So what do our lawyer readers think; would this fly? Would it have a chance to get 67 votes in the Senate, 290 votes in the House, and then be ratified by at least 38 states -- that is, in the world beyond the November elections and the seating of the new Congress and new state legislatures?

Hatched by Dafydd on this day, August 9, 2010, at the time of 10:53 PM | Comments (9) | TrackBack

August 6, 2010

Should a Gay Judge Have Appointed Himself to Hear the Case Against Proposition 8?

Patterico asks a cogent question in a recent post: "Should the Prop. 8 Decision Have Been Made by a Gay Judge?" Or should Judge Vaughn Walker have recused himself from hearing Perry v. Schwarzenegger, the lawsuit filed to overturn California's Proposition 8, an initiative constitutional amendment banning same-sex marriage (SSM)?

Patterico concludes thus:

Still, if you see laws against gay marriage as discriminatory in the same sense that Jim Crow laws were, it’s tough to accept the premise that a gay judge could not ethically decide this case.... Would a black judge be required to recuse himself from hearing a challenge to Jim Crow laws? Somehow, the intuitive answer to that question is no, of course not. Why is this different?

This one is actually fairly easy to answer: By the time Jim Crow laws were being overturned in courts, America had already enacted numerous federal laws and constitutional amendments, an infrastructure of paradigmatic change, going all the way back to our Organic Documents, that collectively formed the basis for a national consensus that "all men are created equal."

Obviously not everybody agreed, or we wouldn't have needed to overturn such laws in court -- nor would we have needed to enact the 1964 Civil Rights Act. But a consensus does not require unanimity; and clearly, Americans were willing to accept in the abstract what they could not always practice in their own lives: That there is no significant difference in personhood between black and white.

Today, we absolutely accept the fact that gay men and lesbians are just as much "persons" as heterosexual men and women, and they have the same rights. Even those of us who oppose SSM accept that point without hesitation; you have to go to a repulsive, lunatic, little vants like the Irreverend Phred Phelps and his henchmen to find anyone disputing the basic humanity of gays.

But that's not the question, is it? We all agree that gays have the same rights as heterosexuals; the question is, what exactly are those rights anent marriage?

I believe that gays and straights both have the same marital rights -- to religiously marry anybody or any group of people they and their religion allow... but to legally marry only those people who meet certain qualifications, one of which is to be of the opposite gender. I have no objection to a gay man marrying a woman, gay or straight; just as I have no objection to a lesbian marrying a man, no matter his sexual preference.

It wouldn't even bother me if a gay man married a lesbian, then they had children... or even adopted. So long as the family has a male father and a female mother, I will grant it's as socially valid and as good for raising children as a marriage of two heterosexuals.

But I do not support a putative "right" to legally marry anybody one "loves", without exception or qualification. Marriage comes with a host of restrictions that bind everyone:

• You cannot marry a person without his or her consent.
• You cannot marry your sibling, your parent, or your close cousin.
• You cannot marry a child.
• You cannot marry multiple people at once (group marriage).
• You cannot marry someone who currently is already married (bigamy).
• And... you cannot marry a person of the same gender as you.

That last restriction applies equally to heterosexuals; consider two old biddies, best girlfriends, both widowed, and both completely straight, but who want to marry for the financial benefits. Sorry, ladies, you cannot. We forbid you to abuse the legal status of being married.

By contrast, I absolutely support the Supreme Court decision in Lawrence v. Texas, striking down laws against "sodomy," however defined. Why the difference? Because the right to associate (and yes, including sexually) is an issue of individual liberty. It also falls within the veil of privacy that, yes, I do believe restrains federal, state, and local government from intruding too deeply into the lives of free citizens. Simply put, a government that can control who you are allowed to sleep with or who you can live with is totalitarian.

But marriage is not a private affair; it's a public, communal celebration and societal endorsement of a relationship; it says, "This is a special relationship that we, in this state, believe is better than other types of relationships. Thus, to encourage this type of relationship, we will reward it above and beyond other relationships." Given that description, state citizens have the right to decide what particular types of relationships we will so celebrate and endorse.

We can decide how close a relationship must be in order to put that person off limits. We can decide how old a person must be to get married. If we so choose, we can decide to allow polyamorous marriage. And if we so choose, we can decide to allow SSM; but by the same token, if we choose -- which we have done -- we can likewise decide to disallow it. And until and unless we have the same legal infrastructure anent marital rights for gays as we had the 1940s-1960s anent civil rights for blacks, no damned court has the power to overturn the people's law and make its own law.

If it did have that power, then America would no longer be a constitutional republic... we would instead be a kritarchy, ruled by unelected, robèd lords with lifetime tenure.

So yes, it may well make a difference if the judge who decided the case is a gay activist. But that would be true whether or not he himself was homosexual; there are doubtless more heterosexual gay activists than homosexual gay activists. The only point in bringing up Judge Walker's sexual preference is that it's another brick in the wall, another piece of evidence that he might well be a gay activist... taken together with other pieces of evidence, including the thirty-eight years he has lived and practiced in ultra-liberal, ultra-gay-activist San Fransisco; his judicial record in toto (not just a couple of cherry-picked cases where he actually deigned to follow the law, instead of trying to rewrite it); and the fact that, as Chief Judge, he probably decided to appoint himself to hear this case.

And of course the vapid and tendentious opinion he wrote, which also smells strongly of judicial activism.

For that purpose, exploring whether Judge Walker is a gay activist, it's not unreasonable to bring up his own sexual preference; by itself, it's not dispositive -- but it's not irrelevant, either.

Hatched by Dafydd on this day, August 6, 2010, at the time of 1:46 AM | Comments (1) | TrackBack

August 4, 2010

The War Against Marriage Goes Round and Round, Round and Round...

Today, between 1:00pm and 3:00pm PDT, U.S. District Chief Judge Vaughn R. Walker will electronically issue his ruling on the constitutionality of California's Proposition 8.

Proposition 8 was the citizen-initiative state constitutional amendment overturning the state Supreme Court ruling legalizing same-sex marriage (SSM) and restoring the traditional definition of marriage to America's biggest (and most debt-ridden) state. The amendment passed 52.24% to 47.76% in 2008, despite the massive, Obama-driven, liberal-Democratic vote.

The state Supreme Court reluctantly upheld the proposition, which led to an immediate federal lawsuit, Kristin M. Perry v. Arnold Schwarzenegger. Alas, I predict that Judge Walker will find for the plaintiff, striking down Prop. 8 (again) and once more shoving SSM down the throats of Californios.

George Will will be beside himself with glee. It's not that he supports SSM; I'm sure he doesn't. But he's absolutely fanatical against citizen initiatives; he considers them an abomination. Imagine, direct democracy!

He is disgusted and appalled at the very idea that citizens should be allowed to determine the laws they live under, instead of letting their betters rule for their own good. If Judge Walker rules against Prop. 8, Will will write a column praising the decision.

By contrast, Patterico -- who supports SSM -- will be bitter and angry... because he believes citizens should be allowed to set their own defintion of marriage much more than he believes in same-sex marriage. The difference is simple: Patterico is a staunch proponent of government by the consent of the governed -- while George Will calls himself an unreconstructed Tory, by which I assume he means he is a monarchist at heart.

The only question I have is whether Walker will stay his ruling until the Ninth Circus can review it, or whether he will order the state immediately to begin issuing marriage licences to same-sex couples... hoping that even if the Ninth or the Supreme Court ultimately overturns his decision, so many lesbians and gay men will have already married that SSM will be a fait accompli, the courts having finally forced the policy upon the state even without final support from the Supremes.

On that narrow question, I make no prediction.

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

UPDATE: I wrote this post before reading Patterico's own post, which also predicts that Judge Walker will strike down Proposition 8. Two great thoughts with but a single mind between them. (Oh, wait; that would make us both halfwits, wouldn't it?)

UPDATE II: Yup.

Hatched by Dafydd on this day, August 4, 2010, at the time of 12:27 PM | Comments (0) | TrackBack

July 31, 2010

A Quick Chip to Patterico...

In a post today, my old blog-boss Patterico argued the inarguable and obvious point that children raised without fathers were more likely to suffer a number of significant drawbacks in life than children raised in an intact home with a mother and father. Patterico writes:

Here is a generalization for you: when I see violent criminals in court, they tend to be fatherless. When government welfare policies encourage fatherless households, they encourage crime and violence. And when anyone -- unmarried women or anyone else -- votes for expanding the welfare state, they are voting for a continuation of this depressing and dangerous cycle.

Patterico is spot on; I couldn't have said it better. And I'll give you another generalization that is equally true: Children raised without fathers tend to have a difficult time being fathers -- and a difficult time being firm without being cruel, being assertive without being aggressive, and balancing immediate desire with long-term planning.

And children raised without mothers tend to have a hard time empathizing with others, dealing with women, sharing and caring, and showing real love and affection. So it's a terrible shame when government policy encourages marriages that shun either fathers or mothers.

Alas, Patterico seems not to have thought this last point through to its logical conclusion... for there is another issue besides crime and welfare that is driven by the Left's desire to sever the sacred bond between male and female in American and Western society; and last time we talked about it, he was all for the radical and progressive transformation being shoved down our throats.

If you're still not sure what issue I'm talking about -- just check the category listed at the top of this post, just underneath the post title.

To quote the immortal Stan Lee (still truckin' on at 87), "'Nuff said."

Hatched by Dafydd on this day, July 31, 2010, at the time of 11:59 PM | Comments (7) | TrackBack

June 16, 2010

Prop. 8 Ate Prop

A funny thing happened on the way to the newsstand: The New York Times -- a.k.a., "America's newpaper of wreckage," whose slogan is, "All the news we see fit to print!" -- published a news article about closing arguments in the federal lawsuit to overturn California's Proposition 8, enshrining traditional marriage in the state constitution... and the newspaper actually forgot to include the usual flimsy mask of "even-handedness," the prop they customarily use to disguise the fact that they have but a single (left) leg to stand on.

In fact, they forgot there was another side to the issue at all, at all. It must be read to be believed.

Generally, as the paper hopes to appear slightly less biased than San Francisco Mayor Gavin Newsom, the writer interviews a couple of sources on the opposite side of a liberal shibboleth like same-sex marriage (SSM). However reluctant and half-hearted such "balance" may be, the editors nevertheless feel a faint obligation to act as something other than a paid shill for the Democratic Party and the hard Left. Or at least to leave that impression.

I have long suspected that such tepid gestures of recognition -- like a little kid told he must kiss Great-Aunt Gruesome -- are rarely found in the original version of the story as it comes from the putative reporter, but are added later, a line here, a word there, by the editorial staff as a sop to the 50% of the country that leans more right than left. (Rather like the disclaimers, read at lightning speed and complete incoherence, at the end of a used-car radio commercial.)

Now at last, I think we have some proof; because in this case, somebody omitted that final pre-publication step. Read the so-called "news" article linked above. Remember, this is not an opinion piece; it masquerades as straight reporting, no pun intended. In the piece, the Times turns its celebratory spotlight on the following burning issues:

• The heroic pro-SSM protesters with their omnipresent pre-printed signs;
• The tear-jerker plaintiffs -- "All we’ve asked the court to do is make sure that we’re protected under our Constitution, like every other American!"
• The powerhouse attorneys on the side of America, the People, Decency, Gaea, and L*O*V*E -- the pro-SSM crowd hired both David Boies and Ted Olson, the two attorneys who represented Algore and George W. Bush respectively in the former's attempt to sue his way into the White House;
• The "several dozen questions" asked by the judge, especially "about the supposed harm of allowing same-sex marriages as well as the government’s interest in forbidding them;"

(Do we start to get the feeling that in this trial, there is no defendant? That the case comprises two brave, loving, gay couples, their attorneys, and the judge -- all facing off against an empty table?)

• The fact that today's arguments take place on a lucky and auspicious date: the second anniversary of the California Supreme Court's decision striking down Proposition 22, the previous version of Prop. 8 -- "when hundreds of same-sex couples were married in California at the start of a five-month period when such unions were legal in the state."

  Proposition 8 ended those marriages, though the California Supreme Court ruled in May 2009 that the 18,000 or so marriages performed in the five-month period were still valid.

  Those big conservative bullies!

• And... oh, wait; we almost forgot: The defendants' attorneys made a couple of points, but they were really stupid, so let's not get into it.

There is literally only a single sentence in the entire piece that even so much as mentions that there is another side in this lawsuit; that defendants' table isn't utterly empty. Read slowly; if you blink, you'll miss it:

Arguments in the trial -- presided over by Judge Vaughn R. Walker, the chief judge of the Federal District Court in San Francisco -- began in early January, and included two weeks of evidence and testimony by advocates for same-sex marriage. The defense offered a much more limited testimony, with two witnesses arguing -- among other points -- that same-sex marriage damages traditional marriage as an institution and that special judicial protections were unnecessary for gay people.

There you go! Other than that squib, there's nothing in the story to indicate that there even is another side; one presumes that to the editorial board of the New York Times, this is literally true: It's not that the pro-traditional marriage arguments are unpersuasive, illogical, or even disingenuous; rather, pro-traditional marriage arguments simply do not exist -- just as there is no argument for repealing the law of gravity or demanding that light propagate at twice the speed of light.

My guess is that Times editors cannot see liberal bias for the same reason that fish cannot see water. And like an aquarium of talking fish-heads, if you take these "journalists" out of their liberal ecosphere, they will flop about desperately until they suffocate to death.

So here's my slogan: Save a forest -- bankrupt the Times!

Hatched by Dafydd on this day, June 16, 2010, at the time of 4:22 PM | Comments (0) | TrackBack

June 2, 2010

497 Days Into the Glorious Revolution...

...Yet America is still held hostage by the wicked tyrant; the unreconstructed, right-wing oppressor; the election-stealing, egg-sucking, blood-for-oiler. All badness in the United States can still be laid at the feet of this evil-doer:

• The failing economy
• The flailing presidency
• The ailing diplomacy
• The bailing overseas contingency

And now -- even the fraying co-residency of two great icons, who between them have saved the world countless times while also creating the internet:

Family friend Sally Quinn told CBS News correspondent Sharyl Attkisson that Gore winning the popular vote for president but losing the electoral vote may have done the marriage irreparable harm.

"He's obviously suffered a lot," Quinn said. "He'll never get over that and neither will she."

So as intelligent, decent folk suspected all along, the separation and upcoming divorce of "Dour" Al Gore and his rodentine wife "Chipper" Tipper is George W. Bush's fault. Finally, everything makes sense; it's pre-emptive payback for Gore's subsequent work circumnavigating the globe a dozen times preaching against wasteful energy use.

Gol-darn that Shrub. Just -- just darn him! Has he, at last, no decency? Oh, the humanity. Therefore never send to know for whom the bell tolls, and watch your parking meters.

Hatched by Dafydd on this day, June 2, 2010, at the time of 7:38 PM | Comments (0) | TrackBack

January 13, 2010

Courting Intimidation: the Supremes Sing Out

A fast follow-up to the second of our two previous "Courting Intimidation" pieces:

• Courting Intimidation of Witnesses: the SEIU-ization of Liberalism
• Courting Intimidation: Supremes May Shut Down Cameras in SSM Case

In the second post linked above, we predicted that the Supreme Court was poised to make permanent its temporary ban on the cameras set to record all the proceedings in Kristin M. Perry v. Arnold Schwarzenegger (Perry v. Schwarzenegger); that is the federal case filed to (once again) overturn the repeated vote of Californios to define marriage in the traditional way, most recently in Proposition 8, which easily passed on November 4th, 2008.

We argued that the only purpose and result of the video broadcasting on YouTube would be to make all the pro-traditional-marriage witnesses easier targets for harassment, intimidation, vandalism, and assault, with an eventual eye towards terrorizing the "designated defendants" into fleeing the case, thus allowing those pushing same-sex marriage to win by default.

Today, we read this:

The Supreme Court voted 5-4 to block the broadcast of a federal trial in California testing whether a voter initiative against gay marriage violates the Constitution.

The high court's five conservatives formed the majority. They said federal judge Vaughan Walker didn't follow court rules when he ordered proceedings broadcast by closed circuit to federal courthouses in several cities.

The Supreme Court's four liberals joined a dissent written by Justice Stephen Breyer.

For the record, that would be Chief Justice John Roberts and Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito in the majority; Justices John Paul Stevens, Ruth Bader Ginsberg, Stephen Breyer, and Sonia Sotomayor dissenting.

Not only was our prediction correct, so too was our reasoning:

The proposition's defenders said broadcasting the proceedings could expose witnesses favoring the gay-marriage ban to harassment and ridicule. The Supreme Court majority backed that view, saying Proposition 8 supporters would likely suffer "irreparable harm" if the proceedings were shown through the closed-circuit feed.

The Court did not rule on the question of putting videos up on YouTube, saying the motion was "premature." They want to wait until the Ninth Circus rules on that first, but I suspect the same actors will line up in the same order if necessary.

We repeat our main predictions:

1. U.S. District Court Judge Vaughn Walker (Bush-41) will certainly rule in favor of the plaintiffs, striking down Proposition 8, the citizens initiative constitutional amendment that restored the original definition of marriage. He has signalled over and over that he has already made up his mind, and the actual hearing is merely a show trial, a necessary evil before he can rule by decree.

2. The three-judge panel of the Ninth Circuit Court of Appeals will uphold Judge Walker's ruling.

   (2a) Judge Stephen Reinhardt will wind up on that panel and will write the majority opinion affirming Walker's ruling. (Yes, this one is specifically for Patterico!)
3. If there is an en-banc hearing, the entire Ninth Circus will narrowly uphold the panel's decision upholding Walker's decree that voters in California have no right to enact state constitutional amendments that the Left doesn't like.
4. The Supreme Court will accept certiorari on the case... and by the same 5-4 vote (though either Stevens or Ginsberg might by then be replaced by another doctrinaire liberal) will overturn the Ninth's ruling, restoring traditional marriage to California.
5. Finally, this time there will be a stay on each ruling until the USSC makes its final ruling, so no more same-sex couples will be fortunate enough to slip through the cracks and get married.

We'll see how well we do. I believe that in the end, we'll have a Supreme Court ruling that nothing in the U.S. Constitution mandates same-sex marriage.

Keep watching the skies.

Hatched by Dafydd on this day, January 13, 2010, at the time of 5:35 PM | Comments (3) | TrackBack

January 12, 2010

Courting Intimidation: Supremes May Shut Down Cameras in SSM Case

In the long-running soap opera "As the Marital Definition Turns" -- that is, the case underway in federal court in San Francisco, where plaintiffs are trying to overturn the initiative constitutional amendment Proposition 8 that re-re-established traditional marriage in America's biggest state -- I reported a couple of days ago that the judge in the case, U.S. District Court Judge Vaughn Walker (Bush-41), had decided that it would be just dandy to have cameras rolling all through the trial, so videos of the pro-traditional-marriage witnesses could be circulated on YouTube... probably as "wanted" posters.

Given the Left's recent history, I concluded that the most likely outcome would be a vicious cycle of witness intimidation that might even cause the "designated defendants" to drop out of the case (as one, Hak-Shing William Tam, is already petitioning to do). Since both Gov. Arnold Schwarzenegger and California Attorney General (and former governor) Jerry Brown refused to defend the amendment, despite it having been enacted by a clear majority of California voters, the proponents of Prop. 8 were forced to ask the court to allow them to defend it. Otherwise, the enemies of the proposition, proponents of same-sex marriage (SSM), would simply win the case and overturn the will of the people by default.

That still could happen, if all the designated defendants are driven out. But that's a little less likely now, for the United States Supreme Court stepped in with an emergency order to prevent the cameras from being turned on. The order lasts only until tomorrow at 4:00 pm court-time; but clearly the Court intends to issue a final ruling on a permanent injunction before then:

The Supreme Court on Monday temporarily blocked a federal judge's decision to allow cameras in the courtroom during the trial on the constitutionality of California's same-sex-marriage ban.

The court's order will remain in effect until 4 p.m. on Wednesday to allow the justices more time to consider the issue. That means the Perry v. Schwarzenegger trial, which began Monday, will have proceeded for three days without being broadcast or videostreamed to news outlets and Web sites such as YouTube.

The only justice objecting to the temporary order was Stephen Breyer, one of the most activist of the left-liberal justices. To me, that's a good sign.

I have high hopes that at least five justices will see the obvious danger of witness inimidation, harassment, vandalism of property, or even physical assault -- given the history I alluded to earlier -- and rule that the experiment of televising federal court cases should not commence with such a contentious issue, about which so many people have such strong, even hysterical positions. Without cameras, the trial should proceed as expected -- to an obviously pre-ordained victory for the plaintiffs; Judge Walker has made his own pro-SSM activism quite clear.

Then we can have the inevitable appeal to a three-judge panel of the Ninth Circus, to an en banc hearing of the entire Ninth, and ultimately to the USSC.

As usual, I expect the camera order -- and the final case, whenever that gets to the Court -- will hinge how Justice Anthony Kennedy feels that day. Let's hope he doesn't have a bad bout of indigestion when it comes time to vote.

Fingers crossed...

Hatched by Dafydd on this day, January 12, 2010, at the time of 1:18 PM | Comments (0) | TrackBack

January 9, 2010

Courting Intimidation of Witnesses: the SEIU-ization of Liberalism

A trial starts Monday in San Francisco that could overturn the will of the people in 45 of the 50 states; U.S. District Court Judge Vaughn Walker (Bush-41) will preside over a federal court case that seeks to overturn Proposition 8 in California -- the state initiative constitutional amendment that itself overturned a California Supreme Court ruling foisting same-sex marriage (SSM) on America's biggest state.

And Walker is stacking the deck: He has already ruled that the trial will be videoed and the videos put up on YouTube, so that radicals will know who to assault. And now, one of the "designated defendants" supporting Proposition 8, Hak-Shing William Tam, is asking to be released from the case, saying he's already suffered death threats and harassment, vandalism, intimidation, and threats to his family:

On Friday, Tam told the court that he was harassed and his property vandalized during the campaign, and feared similar retribution if he continued to represent gay marriage foes' interest in the lawsuit and trial, which is scheduled to start Monday in San Francisco.

''In the past I have received threats on my life, had my property vandalized and am recognized on the streets due to my association with Proposition 8,'' Tam said in a court filing. ''Now that the subject lawsuit is going to trial, I fear I will get more publicity, be more recognizable and that the risk of harm to me and my family will increase.''

Say... if they can just succeed in pushing out the other four designated defendants the same way, the defense will collapse for lack of a defendant, and SSM wins by default! (You don't think this could be, you know, the strategy... do you?)

The forces of liberalism have already done some deck-stacking of their own: When the case was first filed by a couple of SSM activists, both California Gov. Arnold Schwarzenegger and Attorney General Jerry Brown (the former governor) declined even to defend the state's law, passed with a clear majority by the citizens of California. Both men are strong supporters of SSM; so I can only conclude they were hoping that by refusing to defend the case, SSM would be ushered into California law regardless of what the so-called "people" want.

As H.L. Mencken is reputed to have said -- or written -- or thought up -- or wished he had thought up -- "If the government doesn't trust the people, why doesn't it dissolve them and elect a new people?"

Schwarzenegger is a particular disappointment. A couple of years ago, after Proposition 22 (defining marriage to be between a man and a woman) had passed overwhelmingly, the radical-Left California state legislature passed a same-sex marriage bill anyway -- essentially telling voters to take a long walk off Fisherman's Wharf. At that time, Gov. Schwarzenegger vetoed the measure, saying that, while he personally supports SSM (he's a Hollywood conservative, recall), the people had indeed spoken.

Now he tries an end-run around those same people's vote, this time on a state constitutional amendment. Perhaps he got tired of sleeping on the couch.

The liberal elites on the California Supreme Court overturned Prop. 22 (In re Marriage Cases (2008) 43 Cal.4th 757), mandating SSM; and the court ordered it to begin almost immediately, even though Prop. 8, which would make traditional marriage part of the California state constitution, was already on the ballot and seemed likely to pass. The justices must have known the chaos that would (and did!) ensue; evidently radical liberalism triumphed over stability and voters' respect for their civic institutions, as the majority flung both in the dustbin.

Prop. 8 won, of course; but not before some 18,000 same-sex couples were legally married. In May, the California Supreme Court held Prop. 8 to be a valid constitutional amendment; but it also held that those same-sex marriages performed during the brief "window" that the court itself deliberately created were likewise valid.

Monday's lawsuit is a liberal attempt to revive the failed lawsuit against Prop. 8 by refiling it in federal court; evidently the theory is that California's constitution -- which explicitly bans discrimination on the basis of sexual preference -- is no barrier to the people defining marriage in the traditional way... yet the federal Constitution, with not even a mention of sexual preference, nevertheless mandates SSM for every state!

I suppose it makes sense to the Left. And it especially makes sense with Walker's decision about YouTube videos: A new strategy of harassment and intimidation is added to the arrows in the quiver of those who despise traditional marriage as hopelessly Mediaeval.

We've all seen how other liberal shills, such as the Service Employees International Union (SEIU), "persuade" conservatives to abandon their arguments; remember the video of SEIU thugs beating black conservative Kenneth Gladney last August at a town-hall meeting in South St. Louis County, Missouri?

Gay activists have already demonstrated their eagerness to “punch back twice as hard” against conservatives, as Barack H. Obama's deputy chief of staff, Jim Messina, exhorted a few days before Gladney's beating. As Big Lizards reported in October, activists in Washington state have resorted to trying to publish all the names of the ordinary voters who signed a petition against SSM -- painting them all as bigots, Christians, and homophobes, and of course setting them up for harassment, intimidation, or worse:

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

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

How many witnesses will be eager to expose themselves as targets for radical gay-rights activists? How many would have their lives turned upside down, their employers called with bogus complaints, their children threatened and perhaps beaten-up in school... and at the very least, how many will suffer humiliation as their religious and political beliefs are "explored" in court -- by professional mockers and denigrators?

In the months leading up the trial, lawyers for two unmarried same-sex couples on whose behalf the case was brought complained that Proposition 8's sponsors were withholding evidence to which the plaintiffs were entitled by citing a letter they had uncovered written by Tam to members of his church during the campaign.

In the letter, Tam outlined what he described as the disastrous consequences for allowing gays to marry in California.

''One by one, other states would fall into Satan's hands,'' he wrote. ''Every child, when growing up, would fantasize marrying someone of the same sex. More children would become homosexuals.''

The contents could come up in the trial because one of the issues is whether the measure's backers were motivated by anti-gay bias.

Tam's personal religious beliefs are quite mainstream among conservative Christians; and in any event, they are utterly irrelevant to the case: The initiative was passed by literally millions of voters, not personally by Mr. Tam. Yet the liberals at the Associated Press implicitly identify those beliefs with "anti-gay bias," and want the entire amendment overturned because at least one of its authors was a -- a Christian.

The Left holds up Hak-Shing William Tam as the poster-boy of wacko, far-right, homophobic, bigotted Christianity; and come Monday morn, anybody who missed that characterization in the New York Times and the scores of other newspapers that take AP's feed can watch, via YouTube, the plaintiffs call him all those names to his face.

Gee, I wonder why he now wants out? And what a wonderful way to hold an unbiased trial.

I'm sure Judge Walker will "kindly" let Tam out of the lawsuit; and with that example, I'm sure the pressure on the other four designated defendants will mount. In the liberal utopia, they too would all cave... and the radical-gay agenda to destroy marriage would win by intimidation... which appears to be the liberals' favored means anyway.

(Like Professor Fate in the Great Race, they're not interested in winning our way, by persuading voters; they want to win their way, by dirty, mean, underhanded tactics. I think it gives them an extra frisson of pleasure to know that they scared us into silence. Makes 'em feel powerful.)

I hope the other four defendants have more guts than Mr. Tam. I would be happy to volunteer, but I live outside that court's jurisdiction.

Besides, while Judge Walker will doubtless be pleased to allow any defendant who quakes in his boots to leave the case, I doubt he would be interested in allowing anybody more steadfast to join it: That doesn't fit the storyboard of "rats fleeing the sinking ship" that he evidently wants to tell.

Hatched by Dafydd on this day, January 9, 2010, at the time of 10:40 PM | Comments (2) | TrackBack

December 8, 2009

"Marriage" Movement Muffing Magic Moment

One consequence of Chris Christie defeating Gov. Jon Corzine's bid for reelection in New Jersey has been the renewal of traditional marriage in the Garden State. Corzine is an outspoken advocate for same-sex marriage (SSM) -- possibly to distract the citizens of that state from his governmental (and personal) failings -- while the incoming Gov. Christie is an opponent and has vowed to veto any such legislation.

So radical marriage advocates consider the period between now and January 19th, when Governor-elect Christie becomes Gov. Christie and gains veto power, their "magic moment," their last chance to force SSM upon a sullen and unwilling New Jersey populace. Democrats and gay-advocates are trying to ram a bill through the New Jersey state legislature for Corzine to sign before he leaves office.

They scored a pyrrhic victory today when a state senate panel grudgingly approved the SSM bill by the narrowest of margins, 7 to 6; one Republican voted for it, while the Democratic chairman of the committee voted against. (I suspect if that lone Republican had behaved, the chairman would have supported his own party, leaving the vote at 7-6 again.)

The bill now goes to the full state senate for a vote, which obviously must be fairly soon, as January 19th looms. If it should pass, it would race to the assembly, which would surely pass it and hurl it towards Corzine's desk faster than the speed of light. So the senate is the only potential barrier to the legalization of same-sex marriage in Joisey.

According to the New York Times, Corzine's own defeat on November 3rd plays a role in how the state senate may ultimately vote; suffice to say that Christie's victory has put the fear of God (so to speak) into Democratic hearts:

Passage of the bill, considered a fait accompli by many legislators as recently as October, has been in jeopardy since Gov. Jon S. Corzine, a Democrat who supports gay marriage, was defeated in the election last month. That loss rattled some Democratic legislators who began to worry about riling religious and social conservatives by supporting a controversial social measure at a time of economic distress.

The vote is iffy; and if neighboring New York is any guide, support in an actual senate vote will be significantly lower than Democrats expect: The head-count in the New York state senate before the vote lured Democrats into believing that the vote would be close; the final vote was 38 to 24 against, a resounding defeat.

One suggestion making the rounds is that the New Jersey state legislature should pass the deal, and vote to put an SSM initiative on the ballot for November 2010. Let voters take responsibility for their own fundamental institutions!

Not surprisingly, this is pushed mostly by Republicans, who are confident -- given recent polling and the expected strong Republican showing for that election -- that they will win any actual referendum of the people of New Jersey:

Opponents of the measure argued that the issue was so personal that it should be put before voters in a referendum.

John Tomicki, a leader of the Coalition to Preserve and Protect Marriage, said hundreds of volunteers were in Trenton to lobby against the bill and had gathered more than 300,000 signatures on petitions urging the Legislature to reject it.

(New Jersey) Star Ledger columnist Paul Mulshine, who calls himself a conservative (some evidently don't agree), keyboarded a Ledger blogpost today calling for just such a solution:

So, try as they might, all of those people in T-shirts can’t get around the essential nature of what they are trying to do: Rush a bill through lame-duck in defiance of the voters. If this bill somehow gets signed into law, the attempt to repeal it will begin the next day, and the opponents will hold the high ground.

There’s a simple way to avoid this. And that is to put the question of same-sex marriage before the voters. The opponents of same-sex marriage say they would agree to supply the votes to put that referendum on the November ballot. As for the supporters of same-sex marriage, they say they’ve got the votes to pass that referendum.

My guess, however, is that the Democrats in the state senate would never, ever agree to such a bizarre suggestion, allowing the people to vote. Supporters of SSM have historically shied from letting mere voters have a say in crafting the definition of marriage.

SSM is a program of the radical left, the "New Left" that depends upon the gay lobby -- from GALA to GLAAD to ACT-UP, even to NAMBLA -- for a large part of its political clout. These groups tend to be Marxist or socialist in their macro-politics, and all without exception are Stalinist in their strong-arm approach to what they call "gay rights." The last thing in the world the anointed want is ordinary "straights" (sexual and political) voting on the issue; after all, experience has taught them that voters invariably "get it wrong."

They still seem to be getting it wrong. In the latest Quinnipiac University poll, released November 25th of last year (three weeks after the gubernatorial election), New Jersey registered voters opposed SSM by a narrow but statistically significant margin of 49% - 46%; this reverses a poll earlier this year, when voters supported it by 49 to 43. Since April, the support for SSM fell from an advantage of 6% to losing by 3%:

"When we asked about gay marriage in April, it won narrow approval. Now that it seems closer to a legislative vote, it loses narrowly with the public," said Maurice Carroll, director of the Quinnipiac University Polling Institute.

"The biggest drop is among independent voters, who backed the measure 50 - 41 percent in April [and now support it by only 49-45]. And opposition among men spiked from 48 - 44 percent opposed to 57 - 38 percent."

Mulshine seems to agree:

So why not trust the people? Well, in other states, such as liberal Maine and even-more-liberal California, the voters have rejected same-sex marriage. Perhaps those polls [cited by SSM supporters] aren’t so predictive.

(In fact, the polls Mulshine quotes senate supporters as citing are old; they didn't cite the newest Quinnipiac poll noted above.)

I strongly expect a trifecta: After Maine's stunning defeat of SSM in November and New York's rejection of it less than a week ago, I predict that the New Jersey state senate will decisively repudiate same-sex marriage as well.

Unless, of course, the Left realize they are about to lose again... and simply calls off the vote altogether. Perhaps they can figure out some way to get Barack H. Obama's Environmental Protection Agency to implement same-sex marriage by federal regulation; that would be more in keeping with the Left's extreme distaste for messy democratic processes.

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

Hatched by Dafydd on this day, December 8, 2009, at the time of 2:54 PM | Comments (0) | TrackBack

December 2, 2009

How About a Quickie?

From the New York Times, moments ago:

The [New York] State Senate defeated a bill on Wednesday that would legalize same-sex marriage, after an emotional debate that touched on civil rights, family and history. The vote means that the bill, pushed by Gov. David A. Paterson, is effectively dead for the year and dashes the optimism of gay rights advocates, who have suffered setbacks recently in several key states.

The bill was defeated by a decisive margin of 38 to 24. The Democrats, who have a bare, one-seat majority, did not have enough votes to pass the bill without some Republican support, but not a single Republican senator voted for the measure. Still, several key Democrats who were considered swing votes also opposed the bill.

I believe this will mark the turning point. The American voters have always -- every single time -- opposed radically rewriting the definition of marriage to include same-sex couples, along with polygamy, polyandry, group marriage, and overly consanguineous marriage. Whenever the people were allowed to vote directly, they invariably supported the traditional definition of marriage.

But for some time, state legislatures (and of course judges) have been trying a jam-down on same-sex marriage (SSM); several legislatures have enacted SSM in the teeth of opposition by their citizens. In Massachusetts, the lege went so far as to truculently kill a bill pushed by Republicans that would have allowed the citizens of that "commonwealth" a chance to vote whether to keep or repeal that state's legalization of SSM; can't have that!

But today's stunner indicates to me that the fad has passed. It's not just that New York, one of the most liberal states in the nation, turned down SSM; more important, it wasn't even a close vote. Not only all Republicans vote against it (contrary to expectations before the vote), so did eight of the 32 Democrats, a full quarter of that caucus.

Proponents of SSM can dream all they want; that strong a vote is not going to be reversed in the forseeable future. If anything, in the upcoming elections, the New York State Legislature will shift to the right, just like every other state and the federal Congress.

There currently are only four states that allow SSM: Massachusetts, Connecticut, Iowa, and Vermont; New Hampshire will join them on New Year's Day (I wonder how Mark Steyn feels about this). I can confidently predict that that is it; no more states will enroll in that perilous roster. In fact, I suspect that Iowa and New Hampshire may not stick with it for long... and if the voters in Massachusetts are ever allowed their vote, neither will they.

Dare I say it? Of course! The "great movement" for SSM has petered out; adios, and don't let the door hit you on the way out.

Hatched by Dafydd on this day, December 2, 2009, at the time of 2:35 PM | Comments (0) | TrackBack

November 20, 2009

Maritalphobic Democrats Strike Again!

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Hatched by Dafydd on this day, November 20, 2009, at the time of 4:52 AM | Comments (2) | TrackBack

November 18, 2009

How to Win Fiends and Infuriate Voters

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

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

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

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

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

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

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

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

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

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

 

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

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

Hatched by Dafydd on this day, November 18, 2009, at the time of 5:14 PM | Comments (6) | TrackBack

October 21, 2009

All Over but the Outing

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

We retort, you deride!

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

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

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

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

Nobody until now:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

October 2, 2009

Texas State Judge Overturns Texas State Constitution

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

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

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

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

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

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

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

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

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

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

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

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

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

Unless some state judge somewhere has overturned it.

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

August 17, 2009

DOMA Derangements: Obama Wants MA to Dictate SSM to USA

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

August 12, 2009

Pithing on Marriage

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

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

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

June 19, 2009

An Immodest Disposal

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

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

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

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

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

So why aren't they?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

May 28, 2009

Martial Arts and Marital Darts

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A tale of two priorities

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

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

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

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

Status seekers

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

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

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

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

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

Sex vs. race: never the twain shall meet

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

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

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

But none of this is true anent SSM:

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

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

A little privacy, please?

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

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

Yeesh!

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

"Why" is a four-letter word

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

I can identify three major factors:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

May 26, 2009

Supremes Do the Right Thing

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

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

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

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

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

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

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

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

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

Now let the leftist circus begin!

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

Hatch As Hatch Can: Venom of the Gay Left

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

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

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

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

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

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

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

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

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

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

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

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

April 7, 2009

The Party of Conditional Compassion

Riddle me this...

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

March 6, 2009

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

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

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

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

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

The bits we don't care about

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

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

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

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

Straight to the meat of the matter

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

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

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

Mr. Peabody's Way-Back machine

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

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

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

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

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

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

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

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

The other three justices voted to preserve traditional marriage:

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

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

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

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

Back to the future

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

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

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

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

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

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

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

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

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

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

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

All coming together (no jokes, please)

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

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

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

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

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

March 3, 2009

Bostonizing America

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

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

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

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

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

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

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

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

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

No room for Mr. In-Between!

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

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

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

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

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

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

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

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

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

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

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

January 3, 2009

One Side Fits All

Perhaps I just missed it...

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

November 19, 2008

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

October 27, 2008

Defining marriage

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

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

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

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

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

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

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

October 26, 2008

Marriage - a Fundamental Liberty?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

June 22, 2008

Marriage Is a Slippery Slope

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

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

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

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

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

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

May 23, 2008

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

May 22, 2008

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

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

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

Just the FAQs, ma'am

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

This a very important question, as Patterico explains:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Agreeable disagreement

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

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

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

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

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

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

Scrutinizing "scrutiny"

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

Note that the plaintiff

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

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

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

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

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

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

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

Liberty bonds; tyranny severs

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

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

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

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

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

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

Your penumbra has an emanation...

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

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

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

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

Examining the private parts

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

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

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

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

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

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

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

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

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

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

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

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

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

Liberty, security, and sanction

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

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

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

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

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

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

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

Necessary suppositories

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

Very occasionally.

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

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

May 21, 2008

Marriage, Money, and Ursus Maritimus

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

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

California Supreme Court to California Voters: Drop Dead

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

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

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

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

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

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

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

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

The rest is equally brutal.

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

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

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

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

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

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

Pawing the money

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

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

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

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

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

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

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

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

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

One blind man makes exactly that point:

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

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

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

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

Polar bear on a stick

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

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

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

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

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

The conservation groups said Kempthorne acted improperly.

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

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

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

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

The leaden thread

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

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

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

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

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

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

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

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

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

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

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

May 17, 2008

Boycott Michael Reagan

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

May 15, 2008

Californichusetts - bumped from March pending new post

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

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

It boils down to two questions:

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

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

How equal is "equal protection?"

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Societal survival is a compelling interest

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

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

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

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

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

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

What's so bad about SSM anyway?

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

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

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

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

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

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

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

The West is the best

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

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

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

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

Jonah swallows the whale

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

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

Ergo --

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

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

August 31, 2007

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

UPDATE: See below.

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

Why? Because he felt sorry for gays.

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

Assuming AP is more or less accurate:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

It was a narrow window of opportunity.

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

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

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

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

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

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

June 14, 2007

Brokeback Legislature

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

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

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

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

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

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

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

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

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

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

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

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

January 3, 2007

Boston Two-Step

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

December 27, 2006

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

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

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

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

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

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

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

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

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

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

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

Why didn't we think of it before?

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

November 23, 2006

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

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

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

Here is the captain's argument on a nutshell:

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

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

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

First, we must set some ground rules:

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

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

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

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

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

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

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

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

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

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

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

October 26, 2006

"De Minimising" De Marriage

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

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

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

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

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

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

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

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

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

As one polygamist puts it in the article:

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

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

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

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

The underlying argument was this:

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

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

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

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

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

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

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