same-sex marriage – Page 3

Asking the Wrong Question

Yesterday, I posted about Roy Moore and Alabama’s resistance to same-sex marriage, and a commenter took the federal courts to task, asserting that they’d exceeded their authority by invalidating “the will of the people.”

The evidence of over-reach? Nowhere does the Constitution talk about same-sex marriage.

This is an argument that makes my head explode, because it betrays one of the most fundamental misunderstandings of our legal system.

Of course there’s nothing in the Constitution about same-sex marriage. There’s nothing in it about any kind of marriage. Or about the right to travel, or practice a profession, or numerous other rights it protects. That’s because the Constitution is not the source of our rights.

The Founders were persuaded by Enlightenment philosophers like Hobbes and Locke that humans are born with “natural rights.” We have those rights by virtue of being human (or, if you are religious, because we were “endowed” with them by a creator). The job of government, according to Hobbes, was to protect those natural rights and our individual liberty; Locke agreed, writing that government needed to be limited so that state power would not be used to infringe our natural rights and liberties.

The Bill of Rights doesn’t grant rights; it limits government. Even when that government is expressing “the will of the people”–or as the Founder’s might have put it, the “passions of the majority.”

If someone wants to argue that there is no “natural right” to choose your own marriage partner–that the right to live your life in accordance with your own conception of morality and with fidelity to your deepest identity is not a human right–I’ll disagree strongly, but that would be the appropriate argument.

Triumphant declarations that you read the text of the Constitution and didn’t find a “right” to same-sex marriage simply tells the world that you are profoundly ignorant of the purpose of our Constitution and the theory of government upon which it was based.

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Alabama: Why Judges Shouldn’t Be Elected

He’s baaack!

Roy Moore, the infamous “Ten Commandments” theocrat, is serving a second stint as Alabama’s chief justice. Moore was first elected to that position in 2000, but was removed after refusing to move a Ten Commandments monument he had installed at the entrance to the courthouse. Carved into a five ton boulder. In a July 2003 ruling, the appeals court compared Moore’s actions to the

“position taken by those southern governors who attempted to defy federal court orders during an earlier era,” citing the actions of former governors Ross Barnett of Mississippi and George C. Wallace of Alabama in trying to block campus integration and protest marches during the height of the civil rights movement.

“Any notion of high government officials being above the law did not save those governors from having to obey federal court orders, and it will not save this chief justice from having to comply with the court order in this case,” the appeals court wrote.

In November 2003, the state ethics panel unanimously voted to remove Moore from the bench. He was reelected in 2012, narrowly defeating a candidate who didn’t join the race until August after Democrats disqualified their original candidate. (What was that old saying?–you can’t beat something with nothing.) When it became apparent that he’d won, he told supporters

“Go home with the knowledge that we are going to stand for the acknowledgment of God.”

Now, Moore has told the state’s probate judges–who evidently issue marriage licenses in Alabama– to ignore a federal judge’s ruling that same-sex marriages could proceed, and a majority of them have been complying.

Interestingly, Alabama does not require probate judges to have any sort of legal education. It’s also one of thirteen states where probate judges are elected in partisan primaries and general elections.

The U.S. Constitution made federal judges independent precisely in order to avoid this sort of assault on the rule of law. Congress and the Executive Branch are supposed to answer to the voters; courts of law are supposed to answer to the Constitution.

In best-case scenarios, judicial elections give rise to the appearance of impropriety– did campaign contributions influence the administration of justice? In the worst-case scenarios, judicial elections give you a Roy Moore.

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I Haven’t a Clue

During a discussion with a friend the other day, he asked me a question I couldn’t answer. Why, he wondered, did so many other Western democratic countries accept same-sex marriage before the United States? We still have states fighting tooth and nail against the tide of recognition, while in other parts of the modern world, the fight has been over for more than a decade.

I actually asked myself the same question back in 2005, when Spain recognized same-sex marriages. How did it happen that the country best known for the Inquisition recognized same-sex marriage before we did?

The Netherlands was first, recognizing same-sex unions in 2001. In addition to Spain, Belgium, Denmark, France, Iceland, Luxembourg, Norway, Portugal and Sweden have all followed suit. Last year, Britain joined the growing list.

It isn’t just Europe, either–last year, New Zealand became the first country in the Asia-Pacific region to legalize gay marriage. South Africa did so back in 2006.

We Americans pride ourselves on our devotion to individual liberty and human rights, but we haven’t exactly been pioneers on this issue. (Or, come to think of it, on other issues involving acceptance–let alone celebration–of diversity.) Of course, there’s that durable Puritan heritage that continues to fight–often successfully– with the Enlightenment roots of our governing philosophy.

The U.S. is an outlier among western democratic societies when it comes to religion. (Ironically, given Puritans’ constant efforts to pass laws privileging religion, sociologists tell us it is our lack of a state-endorsed religion–our Enlightenment freedom to choose–that is largely responsible for Americans’ persistent religiosity). Since most opposition to same-sex marriage is based on religious doctrine, that’s my best guess at an answer.

Any other theories about why we lag the rest of the west?

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I See Ignorant (Elected) People

Fair-minded Americans have welcomed the recent wave of court decisions striking down bans on same-sex marriage. The LGBT community and its allies have been positively euphoric.

Of course, the homophobes and those who pander to them have had a somewhat different reaction.

Here’s the thing: people who don’t approve of gay people, or whose religious beliefs somehow require them to see gays as sinners and same-sex marriage as an abomination, are entitled to those beliefs. It’s a free country. And elected officials are entitled to disapprove of judicial decisions, although they are not free to disregard them. All of these debates over what is best for the country, what constitutes fair play, what discrimination looks like…all of the cacophony that surrounds social change is both predictable and within the bounds of democratic deliberation.

Abject ignorance is not.

Which brings me to Jan Brewer, Governor of Arizona, and her rant in the wake of court rulings that invalidated her state’s ban on same-sex marriage.

“It is not only disappointing, but also deeply troubling, that unelected federal judges can dictate the laws of individual states, create rights based on their personal policy preferences and supplant the will of the people in an area traditionally left to the states for more than two hundred years.

Simply put, courts should not be in the business of making and changing laws based on their personal agendas. It is not the role of the judiciary to determine that same-sex marriages should be allowed.”

Sorry, Governor Brewer, but your civic ignorance is showing. Courts are absolutely “in the business” of “supplanting the will of the people” when that will violates the Constitution. As I pointed out on this blog yesterday, the Founders of this country created an independent federal judiciary (one that was not elected) and provided those judges with lifetime tenure, because judges were supposed to be responsive to the Constitution and the rule of law—not to the electorate.

Congress and the Executive branch were supposed to respond to majority preferences; the judiciary, however, was supposed to safeguard individual and minority rights and to ensure that the other branches did not violate the Constitution in their eagerness to pander to popular passions.

I have repeated this basic premise of American constitutional law over and over—in my columns, my blogs and my classrooms. Let me do so again.

The Bill of Rights answers an important procedural question: who decides? Who decides what prayer you say, what book you read, how many children you have? In our system, government doesn’t get to decide these and other very personal matters—we individuals decide these things for ourselves. The Bill of Rights doesn’t tell us what we should value or how we should live our lives; it protects our right to make those decisions for ourselves, free of interference by government scolds.

The Bill of Rights also limits what popular majorities can vote to have government do. In fact, the Bill of Rights is sometimes called a “libertarian brake” on the power of the majority. A majority of your countrymen cannot vote to make you a Baptist or an Episcopalian; they don’t get to vote on your reading materials or your political opinions or your choice of a life partner.

People who don’t understand the most basic operation of our system—like Arizona’s Governor Brewer, or Indiana’s Mike Pence—misunderstand and misrepresent court decisions that uphold the right of individuals to live their lives as they see fit without sacrificing their right to equal treatment under the law.

The fact that we keep electing people like this is what I find “deeply troubling.”

Same-sex marriage doesn’t threaten the republic. What threatens the republic is the election of people who are totally ignorant of the Constitution they are sworn to uphold.

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“Totally Implausible”

After last week’s oral arguments in the Seventh Circuit, yesterday’s unanimous opinion striking down Indiana’s ban on same-sex marriage was hardly unexpected. That doesn’t mean it wasn’t sweet.

Some of my favorite language from the opinion, written by (conservative) Judge Posner:

Our pair of cases is rich in detail but ultimately straightforward to decide. The challenged laws discriminate against a minority defined by an immutable characteristic, and the only rationale that the states put forth with any conviction–that same sex couples and their children don’t need marriage because same-sex couples can’t produce children, intended or unintended–is so full of holes that it cannot be taken seriously.

…..

The state elaborates its argument from the wonders of tradition by asserting, again in its opening brief, that “thousands of years of collective experience has [sic] established traditional marriage, between one man and one woman, as optimal for the family, society, and civilization.” No evidence in support of the claim of optimality is offered, and there is no acknowledgment that a number of countries permit polygamy—Syria, Yemen, Iraq, Iran, Egypt, Sudan, Morocco, and Algeria—and that it flourishes in many African countries that do not actually authorize it, as well as in parts of Utah. (Indeed it’s been said that “polygyny, where-by a man can have multiple wives, is the marriage form found in more places and at more times than any other.” Stephanie Coontz, Marriage, a History: How Love Conquered Marriage 10 (2006).) But suppose the assertion is correct. How does that bear on same-sex marriage? Does Wisconsin want to push homosexuals to marry persons of the opposite sex because opposite-sex marriage is “optimal”? Does it think that allowing same-sex marriage will cause heterosexuals to convert to homosexuality? Efforts to convert homosexuals to heterosexuality have been a bust; is the opposite conversion more feasible?

….

To return to where we started in this opinion, more than unsupported conjecture that same-sex marriage will harm heterosexual marriage or children or any other valid and important interest of a state is necessary to justify discrimination on the basis of sexual orientation. As we have been at pains to explain, the grounds advanced by Indiana and Wisconsin for their discriminatory policies are not only conjectural; they are totally implausible.

Indeed.

This isn’t the end of the road, but Indiana is closer to joining the 21st Century–and closer to becoming a state able to attract people of good will, gay or straight.

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