Tag Archives: Gay Marriage

Judicial Fiat, Gay Marriage, and Obama

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Stuart Taylor (Nonresident Senior Fellow in Governance Studies at the Brookings Institution and Contributer to National Journal) has what is perhaps the best perspective I’ve read on the implications of the California Supreme Court decision legalizing gay marriage. It should be noted that Stuart Taylor is a supporter of legalizing gay marriage.

The first half of the Taylor piece is an excellent argument for judicial restraint, giving compelling evidence that the California Supreme Court overreached its powers in its “gay marriage” decision. The second half is well-informed prognastication on how the outcome of the presidential election will effect the make-up of the Supreme Court.

Taylor concludes that a Democrat majority in the Senate will prohibit McCain from getting any truly conservative nominees to the Court confirmed. Conservatives wonder whether McCain would be inclined to nominate true conservatives irregardless of the Democrats. Obama, on the other hand, would be an outright disaster for a strict constructionist view of the Constitution, nominating justices who rule “from the heart” rather than from the text of the Constitution:

…justices who fit Obama’s description might well invent federal constitutional rights not only to gay marriage but also to Medicaid abortions, physician-assisted suicide, human cloning, and perhaps free medical care, food, and housing for poor people; strike down the death penalty (as Stevens recently advocated) and laws making English the official language; ban publicly funded vouchers for poor kids to attend parochial schools; bless ever-more-aggressive use of racial and gender preferences; and more.

The California Supreme Court decision on “gay marriage” stands as a model for the kind of judicial fiat we can expect if this country elects Barack Obama president. Stuart Taylor breaks down why that decision is a disaster in these relevant graphs:

I wholeheartedly support gay marriage. And I am happy for the many gays who rejoiced at the California Supreme Court’s 4-3 decision on May 15 ordering the state to stop calling committed gay couples “domestic partners” and start calling them “married.”

So why do I see the decision as an unfortunate exercise in judicial imperialism? Let me count the ways. Then I’ll touch on how it could be a harbinger of the constitutional innovating that we might see if the next president engineers a strong liberal majority–a likelier prospect than a strong conservative majority–on the U.S. Supreme Court.

. . . . . . . .

The steady accretion of both state and federal judicial power since the 1950s has left a malleable mass of hundreds of precedents straying ever-further from the original understanding of the constitutions and laws they purport to be “interpreting.” This made it easy for the California court to take the leap–as the Massachusetts Supreme Judicial Court had done in 2004–to overriding the state’s voters on gay marriage in the guise of enforcing “the ultimate expression of the people’s will.”

. . . . . . . .

The California court’s majority descended into especially slick sophistry when it suggested that the many gay-rights reforms that the state’s elected branches had already adopted were not a reason to let the democratic process work but rather a mandate for judicial imposition of gay marriage. The message to voters in other states may be: If you give the judges an inch on gay rights, they will take a mile.

. . . . . . . .

This is not to deny the importance to many gay couples and their children of being officially recognized as “married.” They should be treated as married. But to decree this by judicial fiat has large costs to democratic governance. Judicial power to override the deeply felt values of popular majorities should be used sparingly, to enforce clear constitutional commands or redress great injustices, not deployed whenever the judges think they can improve on the work of the elected branches or accelerate progressive reforms already under way.

Also troubling is the majority’s eagerness to move beyond enforcing substantive rights into dictating what words the government must and must not use: Same-sex couples, the majority ruled, have a “fundamental right … to have their official family relationship accorded the same dignity, respect, and stature as that accorded to all other officially recognized family relationships.”

This urge to regulate government speech resonates with the logic of those federal judges who have sought to strip “under God” out of the Pledge of Allegiance. Can court-ordered erasure of “In God We Trust” from U.S. currency, and perhaps a judicial rewrite of the National Anthem, be far behind?

HT: Rod Dreher: Crunchy Con

The Inarticulate John McCain

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For weeks now I have been wondering out loud why presidential candidates find it necessary to lower the standards of the presidency by making appearences on the basest of television venues. In recent weeks John McCain has ventured into the hostile environs of Jon Stewart’s The Daily Show, Stephen Colbert’s Colbert Report, and now in what must confirm McCain’s insatiable appetite for self-flagellation, this week he made a very painful appearence on the Ellen Degeneres show where he endured a verbal flogging around the issue of traditional vs. homosexual marriage:

[youtube=”http://www.youtube.com/watch?v=6lXrizVZW2E”]

Rather than defend marriage on moral principle as the union of a man and a woman for the purpose of procreation, the establishment of the home as the basis of a civil society, and as a union entered “before God” and in accordance with His laws, McCain offers a compromise which suggests that marriage is first and foremost a “legal agreement” for the purpose of sharing insurance and decision-making, the benefits of which are readily available to same-sex couples. Such a position denies conservative principles relative to the defense of traditional marriage, the first principle of which that marriage is fundamentally about reproduction, providing a context for the stability of society in the rearing of children who have been birthed as a result of the sexual union of a man and a woman.

Ellen denies this fundamental principle of marriage, arguing for same-sex marriage on the basis of erotic love, grounding her argument in the mistaken idea that marriage is a civil right that has been denied to sodomizers and lesbians in the same way this country denied the freedom of slaves and the suffrage of blacks and women:

I think that it is looked at, and some people are saying the same, that blacks and women did not have the right to vote. I mean, women just got the right to vote in 1920. Blacks didn’t have the right to vote until 1870, and it just feels like there is this old way of thinking that we are not all the same. We are all the same people – all of us. You’re no different than I am. Our love is the same.

There is absolutely no correlation between the equality denied blacks and women and marriage being denied to sodomizers and lesbians. All humans, regardless of ethnic or gender differences, have been enowed by their Creator with certain inalienable rights on the basis of their common HUMANITY. When Ellen argues that “we are all the same people” she is absolutely correct that in terms of our HUMANITY we are all equal, but she misapplies the equality standard to SEXUAL BEHAVIOR, insisting that there is no difference between the erotic love of homosexual persons and that of heterosexual persons. She couldn’t be more wrong.

Ellen is equal to me in terms of personhood and the individual human rights that accompany personhood. It is a fundamental denial of the human person to deny blacks and women equal status. But no one is denying Ellen and her lover status as persons or the rights that inure to them as human persons. The rights of marriage inure to those who can meet the biological standard necessary for entering a physical union that, with all biological standards being equal, can produce offspring. This is fundamentally the nature of marriage.

To say that because we share the same rights as human persons makes us fundamentally the same in nature and physicality is illogical. I am not the same as Ellen in terms of sexuality. She is a female and I am a male, and as such there are fundamental differences BIOLOGICALLY between us. The female body is capable of carrying and bringing to life the seeds of reproduction, a feat my body cannot accomplish. Have my rights therefore been violated? Obviously not. You can’t fool Mother Nature (i.e., GOD).

To argue that same-sex attraction is a fundamental human right in the same way suffrage is, is nothing more than changing the subject. John McCain allowed Ellen to change the subject and in doing so demonstrated that he is a poor apologist for conservatism on one of the key issues that really, really matters. The only response he could muster was to congratulate Ellen on articulating her position in a very eloquent fashion. Too bad he failed to articulate his position at all.