Tag: gay marriage

Marginal Logic for Same-Sex Marriage

Post author By David
Post date August 15, 2011
No Comments on Marginal Logic for Same-Sex Marriage

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I’m a big fan of the CATO Institute and their perspective on constitutional government but no matter how much I may generally agree with them, that cannot give them a free pass to use use absolutely terrible logic to promote a position. You’ll have to take my word for it that I would dislike the use of terrible logic to promote a position I agree with but in this case Robert Levy uses this terrible logic in support of one of the worst ideas ever promoted in this nation (in my opinion – I recognize that is very subjective). With that introduction – lets break down the flawed logic in Marriage equality: religious freedom, federalism, and judicial activism.

Levy addresses what he calls “three jurisprudential issues that are central to the debate over same-sex marriage: religious freedom, federalism, and judicial activism.” Unfortunately those three jurisprudential issues are not the core of the debate over same-sex marriage. They are one step removed from the core of the debate but they are the focus of the legal wrangling because the proponents of same-sex marriage have declared the debate of the core issue, namely whether same-sex marriage is beneficial for society, to be resolved in the affirmative. This is a critical re-framing of the issue because if that core issue were truly resolved in the affirmative it becomes much easier to make the arguments in these satellite issues and thus produce the intended legal outcome for proponents.

Tags gay marriage, Pursuit of Liberty

culture National

Massachusetts Sues Over DOMA

Post author By David
Post date July 9, 2009
12 Comments on Massachusetts Sues Over DOMA

Well, it didn’t take any special insight to know that this would be happening. One look at the similarities between the question of slavery in the 1850’s as related by Lincoln in his House Divided speech and the issue of gay marriage today had me predicting last week that this would be happening. Notice that the argument by Massachusetts is that before DOMA the federal government recognized that defining marital status was the exclusive prerogative of the states.

In principle I would agree with them – the only problem is that while a nation may survive being divided over how high the taxes should be in each state it cannot survive being divided over the definition of marriage any more than it could survive being divided over the perpetuation of slavery.

Tags gay marriage, Massachusetts

culture

Lincoln’s House Divided Speech

Post author By David
Post date July 2, 2009
No Comments on Lincoln’s House Divided Speech

I had never before read Lincoln’s House Divided Speech. Considering that it came in the very early days of the Republican party it could have been applied to or derived from the split between the Republicans and the Whigs and not simply the nation as a whole. Here is the heart of what most people know of the speech:

“A house divided against itself cannot stand.” I believe this government cannot endure, permanently, half slave and half free. I do not expect the Union to be dissolved; I do not expect the house to fall; but I do expect it will cease to be divided. It will become all one thing, or all the other. Either the opponents of slavery will arrest the further spread of it and place it where the public mind shall rest in the belief that it is in the course of ultimate extinction, or its advocates will push it forward till it shall become alike lawful in all the states, old as well as new, North as well as South.

Lincoln explores the recent history the slavery debate in his speech and I was surprised to find some startling parallels to the gay marriage debate we are currently having in this country. (Some people may not believe me when I say that I started reading this speech with no thought of this issue.)[quote] Here are the parallels I saw from the systematic progress of the pro-slavery movement in the prior four years.

The new year of 1854 found slavery excluded from more than half the states by state constitutions and from most of the national territory by congressional prohibition.

More than 30 states currently prohibit gay marriage by statute or amendment (compared to 6 that allow it) and the Defense of Marriage Act (DOMA) is a congressional action meant to ensure that states cannot be forced to accept gay marriages from other states.

The Nebraska Bill stated:

It being the true intent and meaning of this act not to legislate slavery into an territory or state, nor to exclude it therefrom, but to leave the people there-of perfectly free to form and regulate their domestic institutions in their own way, subject only to the Constitution of the United States.

It was passed without a proposed amendment that would have explicitly stated that the people in a given territory could outlaw slavery within their territorty. Today it is the gay marriage opponents who say “let the states decide” but if the gay marriage advocates get DOMA repealed (as they hope to do) they will be the ones making that argument.

Lincoln sums up the situation of the four years prior to his speech by saying:

. . . when we see a lot of framed timbers, different portions of which we know have been gotten out at different times and places and by different workmen — Stephen, Franklin, Roger, and James, for instance — and when we see these timbers joined together and see they exactly make the frame of a house or a mill, all the tenons and mortises exactly fitting, and all the lengths and proportions of the different pieces exactly adapted to their respective places, and not a piece too many or too few, not omitting even scaffolding, or, if a single piece be lacking, we see the place in the frame exactly fitted and prepared yet to bring such piece in — in such a case, we find it impossible not to believe that Stephen and Franklin and Roger and James all understood one another from the beginning, and all worked upon a common plan or draft drawn up before the first blow was struck.

I believe that Lincoln was right that “A house divided against itself cannot stand.” Today I believe that neither the Republican party nor this nation can endure permanently with part allowing gay marriage and part denying it. I do not know whether to expect the party to fall; but I do expect that if it does not fall it will be because it ceases to be divided. It must fall or become all one thing, or all the other. After the issue plays out in the party it will then have to be resolved in public policy although the chances of the nation splitting and falling over the isue are lower than the chance that the Republican party splits (as the Whigs did in Lincoln’s time) over this issue.

Tags documents, gay marriage, history, parties, Republican

culture General National

Change Done Right

With the news yesterday that New Hampshire passed a law to allow gay marriage I sincerely hope that the proponents of gay marriage may begin to see the right way to bring the change they seek – especially when put in context next to Vermont’s legalization of gay marriage, Maine’s legalization, the setback in the California Supreme Court ruling on Prop. 8, and the reaction to Massachusetts’ Supreme Court decision in 2004. While there has been little if any reaction to those three states that legalized gay marriage through the legislative process there was a large push to overturn the Supreme Court decision in Massachusetts through a state constitutional amendment, and the same approach in California succeeded in rolling back the original Supreme Court decision in California that legalized gay marriage temporarily in 2008.

The point is that the right way to enact these changes is to take the time to educate and convince people so that the change may be made through the legislative process and be accepted rather than simply trying to ram “equality” down the throats of your fellow citizens based on an unwillingness to trudge the long path of education and debate.

Although it may seem quicker to use the courts, we should all remember that cutting off the debate through judicial action has not led to any resolution on the abortion issue even after more than 30 years. It may be that 30 years would be enough to take the “slower” route of education and persuasion to peacefully achieve your goals.

Tags California, gay marriage, legislation, Maine, Massachusetts, New Hampshire, New York Times, Prop 8, Vermont

National

U.S. and CA Supreme Court News

Post author By David
Post date May 26, 2009
No Comments on U.S. and CA Supreme Court News

The news came last week that the California Supreme Court would issue their ruling related to Proposition 8 so I expected to have a reaction to that news today. I saw news this morning that President Obama would make his nomination for a new judge to replace Justice Souter – that news surprised me. Obama nominated Sonia Sotomayor. So far all I really know about her is that she is a Catholic, Hispanic female. I am not at all confident that we will ever have hearings in the Senate about a supreme court nominee that are more about qualifications than about politics, but if that day ever comes I am convinced that the founders were right to assign the task of confirmation to the Senate rather than the House or the people.

In California, the Supreme Court upheld Prop. 8. From what I had heard this ruling was not a foregone conclusion nor was it unexpected. The ruling provided answers to two related questions. One question was whether Proposition 8, which passed with 52% of the vote to define marriage in California as being between a man and a woman, was too far reaching to be added to the Constitution without the participation of the state legislature. As previously stated, the court denied that claim. The second question was whether the same-sex marriages performed before the passage of Prop. 8 would retain their legal recognition. On this the court unanimously agreed that they would still be recognized.

Regardless of my personal opinion on the legitimacy of same-sex marriage (just like the justices are supposed to make their rulings based on the law rather than their own personal feelings) I believe that the court ruled correctly on both questions. I believe that the question embodies in Prop. 8 is perfectly within the right and ability of the people to decide. I also believe that because the same-sex marriages performed before the passage of Prop. 8 were legal based on a previous ruling at the time they were performed the state must feel obligated to recognize those existing marriages (its the principles of ex post facto laws). The only way they could have annulled those existing marriages were if they were to rule that their ruling from last year was in error – which I expect they never will.

Tags California, gay marriage, New York Times, Obama, Prop 8, Supreme Court

culture State

An Illegal Constitutional Revision?

Post author By David
Post date November 5, 2008
17 Comments on An Illegal Constitutional Revision?

Gay-rights advocates in California think that everyone else is an imbecile. They have decided to file a lawsuit claiming that Proposition 8 is "an illegal constitutional revision — not a more limited amendment." They expect that nobody will recognize that the California Constitution makes no distinction between an amendment and a revision. They also expect that they can bully people into forgetting that the nature of an amendment is that it cannot be illegal so long as it is enacted according to the established procedures.

Of course it is possible to make an amendment that goes against common sense, such as an amendment to designate that "in government math 2+3=7." As stupid as that sounds, if such an amendment were passed into law by following the established procedures it would be the law of the state and government calculations would have to be revised accordingly until an amendment were passed to repeal it. (Think back on the 18th and 21st amendments to the federal Constitution.)

There is no such thing as an illegal constitutional revision so long as the revision is made according to the legal procedures. They just hope they can bully the people of California through the courts on this like they did with Proposition 22 from 2000. The difference is that Proposition 8 is now the law of California and the California courts may not invalidate their own constitution – only a new amendment can do that.

Tags amendments, California, courts, gay marriage, Prop 8

National State

Proposition 8

I have stayed silent on proposition 8 thus far although I don’t imagine that many people would guess wrong if they were to predict my position. I have heard plenty of opposition to the proposition so I know the major reasons for those who oppose it. The most famous reasons for those who support Proposition 8 seem to be the "Six Consequences." I have not read those six consequences, but again, the opposition has been vocal enough that I have a pretty good idea of what those are. Today when I read the statement by Constitutional Law professors from California I decided that it was time to set the record straight about this whole issue. Like so many issues, the rancor and the passion on both sides has served to obscure the real issue and color the arguments into inaccuracy. For my purposes I will stick to the 3 points emphasized in this statement .

The first point is correct only to the first sentence – Proposition 8 would change existing California law. The trick is that there is nothing inherently bad about changing our existing written laws, especially when those laws are unreasonable in any way (self-contradictory, vague, or outside the jurisdiction of law are examples of why a law may be considered unreasonable). Those arguing in favor of Proposition 8 are arguing that the definition of marriage falls outside the jurisdiction of human law. To them it is not a matter of discrimination, it is a belief that the following statement is fundamentally false on simple semantic grounds:

Proposition 8 would forbid government officials from according gay men and lesbians a fundamental right they now enjoy and that all other adults in California will continue to enjoy: the right to marry a person of their choice.

The real argument behind Proposition 8 is that no person has the fundamental right to marry the person of their choice but that, in fact, every person finds that their choice is limited by the very definition of what constitutes marriage. At the core, what proponents of proposition 8 are claiming is that marriage is not a man-made construct and cannot be made to conform to the changing whims of society. When society forbade interracial marriage half a century ago it did not mean that interracial couples could not meet the criterion of marriage, only that society was too myopic to tolerate such a marriage.

The real argument of Proposition 8 supporters rests on two premises: 1) that what constitutes marriage is defined by God and not by society, and 2) that God’s definition of marriage requires (among any other criterion) that the parties to marriage may not share a common gender. Anyone who accepts those two premises (as I do) must support this proposition or be in open rebellion against God. (Those who reject these two premises cannot be judged by their fellow men to be in such rebellion on this issue.)

There are two very unfortunate truths regarding the arguments being made by most proponents of Proposition 8. First, they give little if any emphasis to their real argument (as stated above) preferring instead to try to make their case in terms of human law (which argument is naturally riddled with bias and inaccuracy as I will show below). Second, they fail to articulate that – contrary to what opponents claim in order to accuse them of bigotry and discrimination – while they believe that marriage by its nature cannot be entered into in a homosexual fashion they do not argue that gays and lesbians do not have the same fundamental rights as all other people, namely the rights to devote their lives to the person of their choice, to share their earthly possessions with the person of their choice, to offer care and support for the person of their choice in times of emotional, financial, physical, or mental distress (or comfort). In other words, gays have every right to cohabitate, enjoy hospital visitation and inheritance rights, and everything else commonly associated with marriage, but we assert that it is a matter of fact, and not a matter of discrimination that such sharing does not meet the qualifications for the term "marriage."

What is being decided by the voters of California is whether they will make California law conform with the definition of marriage espoused by the proponents which states that a marriage cannot be made without the participation of both a man and a woman or if they will insist in California law that marriage is a human social construct that may be altered according to the prevailing views of society.

The second point is correct on the surface and clearly exposes a flaw in the argument by Prop. 8 proponents. The tax exempt status of churches who refuse to perform marriages for same sex couples will receive the same protection regardless of the outcome of Prop. 8. Historically the tax exempt status of churches has been regularly challenged and rarely overturned. Going forward, it will be regularly challenged and occasionally overturned. The statement by the law professors ignores the truth behind such challenges which is that taking a position against legalized same sex marriage is as good an excuse as any for a group to get angry at a church and challenge their tax exempt status.

The third point is like the second in that it is technically correct and exposes a flaw in the arguments of proponents. Proposition 8 is neither necessary nor sufficient to "prevent public schools from teaching issues relating to marriage by same-sex couples to children whose parents oppose that instruction." Here the statement by the law professors ignores the facts that regardless of what is written in the books of law, very few parents have the time or the expertise to exercise their "absolute right to review all materials provided as part of a school’s comprehensive sexual health education program and to have their children excused from participation," and that legal recognition of same sex marriage by the state gives tacit permission for those who would wish to push such an agenda to test the limits of what parents will permit.

Yes, I just offered correction on the statement of 54 constitutional law professors – including Lawrence Lessig (who I esteem very highly) – and yet the only point that anyone can disagree about is the one that this issue is meant to resolve. In other words, the voters of California will go to the polls to decide between me and those who disagree with me as far as California law is concerned. On the other points everyone should stop their posturing and pointing out of technicalities. The real issue is the question of semantics.

Tags California, gay marriage, government, marriage, morality, Prop 8, religion

culture National

Republic of California

51% of California voters surveyed said they would oppose Proposition 8.

I suppose it’s too much to hope that some seismic activity causes California to break off from the rest of North America and convinces the people of California to declare independence. They could be the 21st century equivalent of Texas.

Tags California, gay marriage, Texas

National State

Back Door Legislation or The Root of Judicial Activism

Post author By David
Post date October 6, 2005
2 Comments on Back Door Legislation or The Root of Judicial Activism

If there is anyone who still reads this blog they will be well aware that I have been lousy at posting anything in the last month or so. I have been working on various other projects and purposely leaving this site dormant for the present, but I am compelled to post after I heard that the Supreme Judicial Court of Massachusetts is hearing a lawsuit on gay marriage. The court is being used as a vehicle to try to get a 1913 law thrown out which prevents the state from issuing marriage licenses to couples who are not residents of Massachusetts if their marriage would not be recognized in their home states.The argument is that the law is being used to discriminate against gay couples. Unfortunately this is a case of throwing the baby out with the bathwater. If the law is being used to discriminate against gays then it should be applied equitably rather than being repealed. These plaintiffs need to prove that heterosexual couples who would not be allowed to marry a home are being given marriage licenses in Massachusetts.

It is easy to see that the agenda operating behind this is not deterred by state boundaries. This is nothing more than a step to legalize gay marriage throughout the country. If this suit succeeds there will be couples from around the country who come to Massachusetts to marry and then complain in their home states that they are facing discrimination. Nobody can argue that this is not the case because the plaintiffs include eight out of state couples. This will happen despite the fact that there is already a federal law stating that one state is not obligated to recognize marriages performed in another state.

I will attempt to walk a very fine line here. I do not wish this to be viewed as a homophobic posting. Unfortunately I cannot claim to know and love a large number of gay people (that would strengthen my argument) but I would hope that it can be said that I treat all gay people with whom I come in contact with the same respect that any human being deserves. I might add that this is the same respect which I withold from bigots of every type. I abhor bigotry and hope never to be guilty of it. That being said I want to address this suit in the light of judicial activism.

Suits like this are the very thing that give rise for judges to exercise any pre-disposisiton towards judicial activism. If this suit has merit the proper course of action would be to have the law rewritten or applied fairly. The plaintiffs have expressed their intention – which is to have the law annulled. If they fully win their case activist judges on the Supreme Judicial Court of Massachusetts can use it as an excuse to rule that the law be removed rather than corrected and enforced properly.

Anyone who nievely argues that this case stops at Massachusetts must ask themselves what a gay couple gains by going to Massachusetts to get married if they then return to their home state knowing that their marriage will not be recognized. The answer is that they gain nothing except more leverage in their fight to legalize gay marriage in their home states. This is not the correct way to go about changing the law. If you want a legal gay marriage move somewhere that it is already legal. If you want to legalize gay marriage live within the bounds of the law and push for legislation to make gay marriage legal where you live.

We have an estalished process for the passage of laws. If a majority of people believe in something it will become law. We have checks in place to minimize the chance for majorities to trample the rights of minorities, but the judicial system is to interpret law and not write it through opinion. If the 1913 law should be repealed that should happen through a vote of the legislature or a ballot initiative. Even Gov. Schwarzenegger understood that when he vetoed a bill to legalize same-sex marriage because the people of California had already passed a proposition stating that “only marriage between a man and a woman is valid or recognized in California.” The governor argued rightly that “We cannot have a system where the people vote and the Legislature derails that vote.” It can also be said that we cannot have a system where the people vote and judges derail the vote once it has passed by a super-majority.

Tags courts, gay marriage, issues, Massachusetts, reactions