In yesterday’s post about the DADT ruling and the relative winning streak gay equality has been on in the courts, the first commenter hit all the perfect buzzwords to demonstrate my claim that there are no good arguments against same-sex marriage. Our readers have made some excellent critiqued so far, and to some extent I am simply going to repeat them, but I wanted to highlight the weak arguments anti-equality people make. So congratulations, Mr. Kowal, you’ve been promoted to the front page.
Mr. Kowal writes:
I can’t see why a judge’s moral view about marriage should have any more or less weight with the people than anyone else’s,
Is this an inadvertent misreading of my post, or are you purposely mis-stating the issue? These judges have not relied on their moral view, but on the legal principle that personal moral views do not outweigh the 14th Amendment.
I find this part of the response the most outrageous, because Mr. Kowal is basically arguing that gay equality cannot possibly be seen as a matter of law, but only from a (presumably perverted) moral perspective. Not only has he denigrated the value of the law itself–because equality has long been a bedrock principle not just of law but of the very concept of law–but he has insulted every justice who disagrees with him on the issue, implying that they have abdicated their duty to judge issues as a matter of law.
It’s one thing to disagree with their interpretation of the law, but to say they’re not ruling based on law, but on personal morality, is a serious charge, as it is a claim of judicial misconduct. If he’s going to make such a charge, he should have some actual evidence, which of course he doesn’t.
“San Francisco lifetime apointed judge
You forgot “Republican-appointed” in your attempt to dishonestly spin the issue to make it about mere politics. Perhaps you’re not familiar with the Constitution, but all federal judges have lifetime appointments. The Framers of the Constitution purposefully designed it that way. If your beef is with lifetime appointments, you should be bitching about them. Did you know that Antonin Scalia is also a “lifetime appointed judge”? And he has voted against gay equality–should I be complaining because as lifetime appointed judge he shouldn’t get to make any decision on the issue? Or are “lifetime appointed judges” acceptable if, and only if, they rule in the way you want?
And your emphasis on the judge being from “San Francisco” judge is neither wholly true nor remotely relevant.
- Judge Walker was born in Illinois and went to college in Michigan. He’s a Midwesterner, born and bred, like me.
- And the case was heard in San Francisco because that’s where the Federal District Court, Northern California District, is located. The plaintiffs, who as American citizens have just as much right as you or me to take their case to the courts, live in that District and were denied marriage licenses in that District, so that District was where they were legally obligated to file.
- San Francisco is an American city, and citizens of San Francisco are U.S. citizens, so they just as much right as anyone else to be appointed to the federal judiciary! Your implication that somehow the decision is illegitimate because the judge sits on a court in San Francisco is nothing more than an attempt to delegitimate the citizenship of San Francisco Americans, to suggest that they ought not to be able to serve on the federal judiciary.
- The 7 Iowa Supreme Court justices who unanimously ruled that their state constitution’s equal protection clause required same-sex marriage are all from Iowa. Those Midwesterners came to exactly the same conclusion as the San Francisco judge, so quit pretending that it’s a “San Francisco liberal perverts” issue.
That no “private moral” view may ever form the basis for legislation would mean the end to all legislation concerning not only marriage, but adult incest, polygamy, obscenity, animal cruelty, prostitution, bestiality, etc.
Mr Kowal demonstrates the typical moralist’s incapacity to make moral distinctions, lumping prostitution, polygamy, and bestiality into the same category. Let’s sort this out by taking them separately.
- Animal cruelty and bestiality: These can be put together because both involve harm to animals. Can animals consent? No. Nor can they speak up for themselves. There is in fact serious philosophical debate about whether animals have or deserve rights, but there is little doubt that we can legitimately defend the defenseless against those who would harm them.
- Prostitution: Prostitution is often called a “victimless” crime, but that’s not precisely true. The spouse whose relationship with her spouse is built on a belief in fidelity can be harmed by prostitution. And if we’re not willing to allow such psychological as a standard, there’s the issue of sexually transmitted diseases that affect innocent third parties.
- Adult Incest: Incest creates a very high risk of severe birth defects passed onto a child–harm to a third party again. (But if the adults are incapable of reproducing, then what business is it of yours or mine if they engage in incest.)
- Polygamy: The Bible says that David had eight wives and was a man after God’s own heart. It’s a bit late in the game for Christians to make a serious claim that polygamy is inherently immoral. But anyway, if all parties to the plural marriage are adults, have joined voluntarily, and are not doing it as a welfare scam, why is it any of your business or mine?
What we see here, once again, is that the chief desire of the moralists is to control other people’s behavior; to make others conform to the moralist’s standard even when no one is being harmed in any way.
As I have implored Jason Kuznicki here and here, I would likewise ask you: if the people are not sovereign over the courts in matters such as marriage, what of their sovereignty is left? Jason’s answer was less than comforting: the “checks on the judiciary” that one would expect to learn in a “high school civics lesson.” Which I take to mean, “advice and consent,” the power of the purse, and “court packing.”… If you have a more satisfying answer to the judicial activism problem, then perhaps the rest of us can take a bit less umbrage at the courts’ recent railroading of the right to self-governance and the right to define, create, and perpetuate our social institutions.
So you’re not satisfied with the Constitution’s system of checks and balances? You think the Founders didn’t create enough checks on the judiciary? And you ask me to give you a “more satisfying” answer?
No. If you’re not satisfied with the Constitutional system then you can advocate changes to it, but I’m sure as hell not going to try to give you any answer that “satisfies” you that the public actually can control the judiciary enough to prevent them from protecting constitutional rights!
You have no understanding of how our system really works. Self-governance does not mean the right to pass any laws we want, but the right to pass any laws that are consistent with the Constitution, and the right to change that Constitution. But it absolutely does not mean the right to pass laws that violate that Constitution.
And in a system like that, somebody has to be given the final authority to determine whether laws violate the Constitution or not. And in our system, that final authority is the Courts.
The answer when we don’t like the Courts’ rulings is not to undermine their authority to make final determinations, because then you will have absolutely destroyed the rule of law in America! Can you not see that allowing the majority to overrule the courts means the majority can completely negate the constraints the Constitution places on them?
The Framers purposely gave the federal judiciary independence, precisely to protect them from the political pressure that you want to put on them. In pleading for a way to tighten the leash on them, you are attacking the Constitution, you are attacking the rule of law, you are mocking the Framers’ wisdom, and you are attacking the very foundations of the American political system.
And yet you think same-sex marriage is the big threat? No–the threat is from those of you who are so adamantly opposed to same-sex marriage that you would fundamentally alter the basic foundations of the American system to deny it.