Defending Marriage, After Massachusetts: What the Court Did and How We Should Respond

National Catholic Register ^ | November 30 - December 6, 2003 | EVE TUSHNET

[Alberta's Child]

YOU may not a problem with that, but I can assure you that the "gay marriage" movement certainly does. Which is why the whole notion of dealing with the subject in a libertarian "live and let live" manner is meaningless.

[TKDietz]

The fourth option is to keep pushing for more conservative judges and eventually the pendulum will swing back to where it is more to your liking and probably too far for my tastes.

I agree that the far left has overused the court system in trying to push their agenda. But I think both the far left and the far right try equally hard to install judges that they believe will render decisions more to their liking. I also think that even "conservative" judges are always going to make rulings that might look moderate and even liberal to many. Putting on those robes and given the lofty responsibility of interpreting our laws has an effect on people. Even the most conservative often make decisions guided by principles of fairness, tolerance and a strong sense that Constitutional rights should be protected and freedoms should be guarded and even in some instances expanded to the limits of our Constitution.

I'm not as bothered as you are by the "liberal judiciary." I do not believe that 80% of the people making up the judiciary, the media, and the academic world strive for a sexually libertine and secularist society. It may seem that way to you, but that is not the case. I think that is over-hyped rhetoric by the far right. While there certainly are far left kooks out there pushing extreme agendas, I don't see the same vast left wing conspiracy you see. The fact of the matter is that those in the media, the judiciary and in higher education tend to be educated and educated people tend to be more liberal on social issues than uneducated people. They do tend to be egalitarian. They've usually been exposed to more diversity than less educated people and are more likely to be understanding and tolerant of others and others' beliefs. That does not make them all far left extremists who want to promote alternative sexual lifestyles, murder babies and drive Christianity out of America.

Being tolerant and valuing freedom does not make one less conservative. Seeking to amend the Constitution in order to place further limitations on the states and further concentrate power in the federal government is in no way a conservative goal. A radical shift in the power structure of our nation by killing the authority of one of our three branches of government would not make our nation more conservative or more free. It would seriously diminish the safeguards that would protect us in the future from more sinister administrations who would abuse the power if they had it.

Our system may not be perfect, but the judicial branch of government provides a critical check and balance against the potential abuses of the other branches of government.

[TKDietz]

Look, I think it's too late. I'm no expert on this but aren't there already laws in place that prohibit you from discriminating against people based on their sexual preference in hiring or in housing if you have over a certain number of dwelling units? So isn't this whole conversation is meaningless?

I'm tired of arguing with busybodies hellbent on getting into other people's business. I don't want to live in a nanny state. I don't want my government to micromanage everyone's lives. And I wish my fellow countrymen weren't such a pigheaded intolerant lot consumed with worrying over how everyone else lives. I don't like the laws telling you who you can or cannot hire or rent to either. If you don't like 'em change 'em and discriminate till your heart's content. I've got more important things to do than argue about this petty nonsense.

[puroresu]

#####The fourth option is to keep pushing for more conservative judges and eventually the pendulum will swing back to where it is more to your liking and probably too far for my tastes.#####

True, I agree.

#####I agree that the far left has overused the court system in trying to push their agenda. But I think both the far left and the far right try equally hard to install judges that they believe will render decisions more to their liking.#####

I would say there are no right-wing judges on the court that are comparable to the left-wingers. For example, no judge on the U.S. Supreme Court would order a state to implement the death penalty, or ban abortion, or ban sodomy. When we refer to conservative judges (Scalia, Thomas, etc.) we generally mean judges who don't impose liberalism on the country from the bench. In other words, there are judges who force liberalism on us, and judges who don't. We call the former liberals and the latter conservatives, but the latter are not really ideological mirror images of the former. To be that, they would have to seek to use judicial power to force states to enact conservative agenda items (just as liberal judges force states to enact liberal agenda items). No judges on the court desire to order, for example, Vermont to repeal its gay civil unions law, or Massachusetts to implement the death penalty.

#####I also think that even "conservative" judges are always going to make rulings that might look moderate and even liberal to many. Putting on those robes and given the lofty responsibility of interpreting our laws has an effect on people.#####

I think a better way of putting it is that some so-called conservative judges get co-opted once in power. Anthony Kennedy gets fawning editorials written about him every time he tracks to left. The intellectually lazy simply follow the herd, and in Washington the herd moves left. I work at a university, and I'm well aware of the "soft" intimidation that greets conservatives around campus. It's easier for some to just join the herd and avoid the ridicule. This is why judges rarely, if ever, turn out to be more conservative than they were predicted to be at confirmation. The political, legal, and social culture surrounding the judiciary pushes them leftward.


#####Even the most conservative often make decisions guided by principles of fairness, tolerance and a strong sense that Constitutional rights should be protected and freedoms should be guarded and even in some instances expanded to the limits of our Constitution.#####

The problem with your argument is that it presupposes that liberal court rulings expand freedom and tolerance. This is a common idea in our society, because the dominant media only present one side of most issues to any significant degree. Take abortion as an example. We're told Roe vs. Wade expanded freedom and tolerance. But it sure didn't do so for the unborn child. Not to mention that it robbed millions of Americans of the right to self-government on an issue that had resided with the voters from the founding of the Republic until 1973. And, it led to further judicial fiats in several states ordering taxpayers to pay for abortions, stripping parents of rights in regard to their minor daughters, and so forth.

#####I'm not as bothered as you are by the "liberal judiciary." I do not believe that 80% of the people making up the judiciary, the media, and the academic world strive for a sexually libertine and secularist society. It may seem that way to you, but that is not the case. I think that is over-hyped rhetoric by the far right.#####

Well, I did throw out the 80% as a number that can't be quantified. Suffice it to say, there are far more liberals on the courts than conservatives, and as mentioned earlier, there are virtually no conservatives trying to legislate from the bench. The judges we call conservative are the ones who don't use their authority to impose liberalism (as opposed to those who do). As for the media and academic communities, at the high levels 80% may be a conservative estimate for the percentage of lefties there.

#####While there certainly are far left kooks out there pushing extreme agendas, I don't see the same vast left wing conspiracy you see. The fact of the matter is that those in the media, the judiciary and in higher education tend to be educated and educated people tend to be more liberal on social issues than uneducated people. They do tend to be egalitarian. They've usually been exposed to more diversity than less educated people and are more likely to be understanding and tolerant of others and others' beliefs.#####

Want to wager what would happen if we brought back literacy tests for voters? Don't bet on the Dems picking up seats! :-)

I've never noticed the people you describe as being particularly tolerant. You see, true tolerance is a two way street, but what we get from leftist elites is a one way street. So, tolerance means we don't bash gays, but we do bash unborn babies. It means a Nativity scene can't be put in the public square, but tax money can be used to finance art that attacks and ridicules Christianity. Tolerance means we accept gay marriage, and then submit to laws which force us to rent our apartment to gay couples even if we morally disapprove of homosexual conduct. In other words, no tolerance is expected from liberals, only from conservatives. The most intolerant people prowling our culture today aren't pro-lifers or people who oppose gay marriage, but people like Margaret Marshall who see a multi-thousand year old cultural institution, decide they don't like it, and from on high order us to alter it to suit their egalitarian fantasies.

What's befallen us isn't a leftist conspiracy. It's simply something that's evolved with time. Over time the left has solidified its control of the courts and has learned to use them to further their agenda on issues where the public disagrees with them.


#####Being tolerant and valuing freedom does not make one less conservative.#####

True, but I don't regard liberal judges as people who meet the criteria you describe. I think judges like Margaret Marshall and Harry Blackmun value neither tolerance nor freedom. To the extent they invoke either, it's a smoke screen masking the one way street I described earlier.

#####Seeking to amend the Constitution in order to place further limitations on the states and further concentrate power in the federal government is in no way a conservative goal.#####

You raise a relevant point here, but it shows the bind we're in. Gay marriage should not be a federal issue, nor should abortion, sodomy laws, or any number of other matters. The problem is, leftist judges have made them federal issues (or, in the case of gay marriage, appear poised to do so). So what do we do in response to unconstitutional aggression by the federal courts? You seem to be saying that we should accept federal judicial hegemony over the states because the aleternative, a federal marriage amendment, would dictate terms to the states.

Might I paraphrase a line from the village elder in Seven Samurai: "Don't worry about your beard when your head is about to be chopped off".

Your position is akin to arguing that force can't be used to evict an evading army from a demilitarized zone, on the grounds that the force used would violate the demilitarized status of the zone in question. But once a demilitarized zone is invaded, it's no longer demilitarized. Once Roe came down, abortion was no longer a state issue. The same will be true when Anthony Kennedy pens some sociological claptrap imposing gay marriage on the fifty states via a federal judicial fiat.


#####A radical shift in the power structure of our nation by killing the authority of one of our three branches of government would not make our nation more conservative or more free. It would seriously diminish the safeguards that would protect us in the future from more sinister administrations who would abuse the power if they had it.#####

Well, I'll take my chances with the two branches of government which are elected. The judiciary has created a loophole in our federalist system which allows them to act totally unchecked against the states. These rulings (Roe, sodomy, Massachusetts gay marriage, etc.) are so far outside the context of anything in the written constitutions in question as to themselves be tantamount to a coup against the people of the United States.

#####Our system may not be perfect, but the judicial branch of government provides a critical check and balance against the potential abuses of the other branches of government.#####

True as intended, but the courts have long since moved beyond that role into one of making law and acting as an on-going constitutional convention, one in which only people of a certain ideological stripe are invited. Can you imagine a federal court ruling which, for example, orders a state to ban abortion? You can't, because no judge on the court would do that. Not Kennedy, not Souter, not Scalia. No one. Only the left is permitted to behave it such a manner, and then mask it as "giving new meaning to a living constitution".

[puroresu]

Typo correction: "evading army" in my prior post should be "invading army". Duhhhhh! :-)

[Alberta's Child]

My whole point is that court decisions aimed at providing "protection" for certain groups of people may sound benevolent on their face, but in fact they result in a more totalitarian government than you had before the decision was rendered.

That's exactly what happened with the Civil Rights Act of 1964. In only a couple of decades, we went from a situation where the Federal government legislated "equal protection under the law" for all people, to one where the Federal government could send an Equal Employment Opportunity Commission representative to your place of business to issue a citation against you for failing to have enough people of certain "protected classes" working for you.

You've also missed a very important point regarding the Constitutional amendment issue. The purpose of a Constitutional amendment on the Federal level is not to "impose morality" on people -- it's to prevent the court or legislature in one state from using its own power to force its will on other sovereign states. By law, a marriage in one state is presumed to be legitimate in all other states. So a state like Alabama or Utah that has no interest in recognizing homosexual marriages could effectively be forced to do so just because one stae (Massachusetts) decided to recognize them.

This is why I use the hypothetical case of polygamists to make the point. There is absolutely no reason why a state court cannot recognize polygamy as a valid definition of "marriage" (in fact, as I've pointed out earlier, the Supreme Judicial Court of Massachusetts would have to rule its recent ruling on homosexual marriage invalid in order to reject a petition for recognition by a polygamist). And once that court does this, then your state will have to recognize the marriage as valid.

This may sound like nothing more than a libertarian "live and let live" issue, but your home state will be thrown into utter chaos the first time a public employee goes to another state to get "married" in this manner, then comes back and demands to have all of his "spouses" (three, four, or -- who knows -- maybe 4,000) covered by taxpayer-funded insurance and pension plans.

[John Valentine]

With all due respect your comments go way beyond "silly" into the realm of the riscible.

If "feeling" married were all that mattered, then weird people would not feel a need to go to court to have the dictionary and thousands of years of tradition overturned and rewritten. They presumably could be happy to just "feel" married, as you seem content to do.

And, sure, opposite sex couples will continue to get "married" in Massachussets, but what they will be doing when the "marry" in Massachussetts witll be QUALITATIVELY different than what the same couple would be doing if they were to marry, for example, in Texas.

In the first case, they will be participating in a state sanctioned jest; a mockery. In the second they will be participating in a sacrament.

And this has nothing to do with sentiments or feelings, this has to do with state action completely outside the law.

[scripter]

I'm offline most of today so I'll get back to you later.

[TKDietz]

I understand what your are saying. And I fully agree that some of this equal protection affirmative action nonsense went way too far. I agree with you 100% in that respect. I don't like it either. But I think that sort of thing goes in spurts and it appears that we are shifting away from this rampant and oppressive political correctness.

It's true though that allowing gay marriage would result in gay couples gaining more rights and more protections under our laws. It will make it easier for them to file those insipid discrimination suits. I will concede that. But when the smoke all clears, things just wouldn't be that much different than they are now except it will be more fair and free here and the ever vocal gay rights movement will eventually run out of things to gripe about and most of them will just go home.

This is not my issue. Too me, the whole gay rights thing is more of an annoyance than anything else. I do not feel threatened by homosexuals, nor do I care if they marry. It's no skin off my back. I would just as soon concede to these people and let them have what they want. It's just my nature to live and let live. I don't care what anyone else does as long as they don't bother me or people I care about.

I can see that you will never agree with me on this. You probably believe that allowing gay marriage would just be a first step into much worse moral depravity in our society. I just don't believe that. I think that's misplaced alarmism. Like I've said elsewhere in these threads, if anything is going to prove to be our undoing, I would just as soon that it be freedom. I don't think government should be in the business of limiting what people do unless the conduct they are limiting causes significant unjustifiable harm to others or creates a substantial and unjustifiable risk thereof.

[breakem]

I'll count the minutes.

[Alberta's Child]

But when the smoke all clears, things just wouldn't be that much different than they are now except it will be more fair and free here and the ever vocal gay rights movement will eventually run out of things to gripe about and most of them will just go home.

If you really believe that, then you are terribly naive. That's why I used the parallel example of the modern "civil rights" movement. Minorities in this country have very little to complain about, but that doesn't prevent a number of them from creating an entire industry out of filing idiotic lawsuits, pursuing grievances where none exist, etc.

You probably believe that allowing gay marriage would just be a first step into much worse moral depravity in our society.

If you go back through my posts on this thread, you'll notice that I didn't make a single statement of moral judgement on any of them. The argument against gay marriage can stand up on legal and practical grounds without ever making a statement about public morality.

The reality is that aside from any moral issues that people might feel are at stake, homosexual conduct is inherently "disordered" in nature. This is why, for example, homosexuals in general (men in particular) have a higher incidence of almost any physical or psychiatric pathology that you can think of (drug abuse, alcoholism, most contagious diseases, etc.). That's not a value judgement -- that's a statement of fact.

The response to this kind of situation is not to "shove them in a closet," so to speak -- but nor is it appropriate to pretend that there is anything normal about it. The person who picks a drug addict up off the street, takes him home and gives him a warm meal and a place to sleep, and then returns him back to his place on the street is not doing him any favors -- in fact, he is enabling the drug addict to continue on a very destructive path.

[scripter]

People who want to molest children don't need the APA to tell them it's okay. Do you think people read this stuff to see if they have the go ahead?

Your above comments appear to be a blatant misrepresentation of anything I said. Don't do it again.

I believe you are responding to a paper presented my 1 pysch and disavowed by the organization.

I'm not going to assume anything here: To what paper and organization are you referring?

[scripter]

That's not a value judgement -- that's a statement of fact.

It is indeed a fact. While I can understand the hesitation to take away any freedoms, somethings, such as a behavior that results in such severe health hazards, behavior that results in a contagious deadly disease should not be recognized as valid, encouraged or given any form of protection.

The person who picks a drug addict up off the street, takes him home and gives him a warm meal and a place to sleep, and then returns him back to his place on the street is not doing him any favors -- in fact, he is enabling the drug addict to continue on a very destructive path.

That's it, exactly. A true friend, once they know better, will not encourage or enable destructive behavior.

[breakem]

Your response shows me you are not interested in a serious exchange. I don't deal with threats on web sites. If we were face to face we could have a little discussion. Good bye and good luck on your crusade to excoriate millions of US taxpaying citizens.

[scripter]

Your response shows me you are not interested in a serious exchange.

Telling you not to blatantly misrepresent what I say tells you I'm not interested in a serious exchange? That speaks volumes to your intent. If you were intererested in a serious exchange you wouldn't blatantly mispresent anything I said. Because you did, perhaps you're only interested in denigrating the facts.

I don't deal with threats on web sites.

That's a new one! Telling someone to stop misrepresenting what they said is a threat? What, do I have to put a "please" in front of it? Sheesh, talk about thin skin...

If we were face to face we could have a little discussion.

If we were face to face I highly doubt you would blatantly misrepresent anything I said.

Good bye and good luck on your crusade to excoriate millions of US taxpaying citizens.

And now you resort to misdirection. By all appearances you're not really interested in a discussion.

[breakem]

for folks who want to know what the "bluster" technique is read 40 and 44. When confronted with a simple question in 44 a zealot replies with 72 and an admonishment "don't do it again." And then challenges the questioner to get serious about the discussion.

This is the type of person who rags on homosexuals as if they are all represented by the extremist amongst them. You must ask yourself if this standard applies to any other group of citizens. It is a disingenuous technique and characteristic of the worst propagandist.

[scripter]

When confronted with a simple question...

Your question was very misleading from anything I said. Perhaps you're completely unaware of the content at the pedophile websites (I listed in post 31) that use exactly the justification I stated to molest kids. Perhaps you know the content and want to misdirect the discussion away from the websites? I hope not.

You also said:

I believe you are responding to a paper presented my 1 pysch and disavowed by the organization.

Your statement above has at least 1 typo. Again: "I'm not going to assume anything here: To what paper and organization are you referring?"

[scripter]

It is a disingenuous technique and characteristic of the worst propagandist.

What's really sad is the above is really close to how I'd summarize your posting style. When asked for clarification you decided not to provide it, and that only reinforces my opinion or your posting style.

[breakem]

I'm sure you went back and read the posts that I referred to and you're chosing not to respond to the issue or are you really that light on reading comprehension. It was not complicated. You made this into quicksand. Get yourself out. Or you can just drag on this "discussion."

[breakem]

I apologize, for just reading your 77 with a serious question. If you read your post I initially replied to you would see the organization that you yourself brought up.