Thursday, June 27, 2013

DOMA: Bad Courtroom Theater by Justices

Jerry Lee Lewis and his 13-year-old bride,
coming to a state near you.
I can't seem to recall which famous Justice said that he often had had to find in favor of people or causes that he disliked because he was a judge of law.  I'm thinking it was Justice Holmes, who also said, "This is not a court of justice, young man; it is a court of law."

I wonder, if the state of Idaho were to determine that a man could marry a girl of 12 years, to what degree would another state be bound to honor that marriage?  What about a girl of 9?  How about 8?  According to the Supreme Court, if the state next door has sanctioned it, you'd better honor it.  "A pack of cigarettes, Mrs. Daisy Jo? Umm, maybe your husband can purchase them... How about some Bazooka Bubblegum instead?"  But I'm getting ahead of myself.

In a rush to be on the side of right, many people are talking about, and rejoicing in, the outcome of the case, as if the outcome was the ultimate point of a Supreme Court decision such as this. And if the findings of that case are limited to the effects of that case, maybe that truly is all that matters.  But in cases that are about establishing jurisprudence, the trail of reasoning for future decisions, there is much that the Left should find embarrassing about it, assuming their constituency is still capable of embarrassment.

Before reading Justice Scalia's dissent, I noticed almost immediately the same disturbing confusions in the summary of the decision.  A celebration of states' rights... wait, since when do liberals celebrate states' rights?  You get past the .  The "states' rights" issue becomes merely a point to argue that
      A.  Social conservatives usually favor states' rights.
      B.  DOMA doesn't favor states' rights.
      C.  Social conservatives had foul intentions.

Much of the reasoning is in fact about rationalizing a way to legislate undemocratically on an issue based on speculation about the goodness or badness of legislators' intentions.  And then the 14th Amendment is brought into play.  Now, the 14th Amendment amends, among other things, the 10th Amendment.  However, it doesn't dismiss the 10th Amendment.  But it does override for the purposes of securing legal protections and people's access to the same due process.

There is so much to differentiate the issues of "interracial marriage" and the complete redefinition of gender in marriage, that it would requires a separate post or two to even address it.  Suffice it to say, I am sympathetic with the outcome of Loving vs. Virginia, but it's reasoning is confused as well.  The decision speaks of sentiments and laws that are "repugnant to the Fourteenth Amendment."  Not "in violation of" the 14th, but sentiments and laws that disgust the 14th Amendment. "You have offended the mighty 14th! Kneel and beg for Its Mercy!"  The Mighty 14th apparently has a Grand Soul, a spirit which must be honored.  (The 2nd Amendment, on the other hand, has a diseased soul that liberals find repugnant.)

The Loving vs. Virginia decision uses some judicial sleight of hand to dismiss the fact that, when the People's representatives in Congress passed the 14th Amendment, the People had no reason to believe that the states were not free to ban interracial marriage if they so chose.

Liberal courts are fabulous at cherrypicking pieces of precedents.  The next Obama Court decision will simply select out the part about homosexuals' indignity and suffering at state laws that deprive them of this "elevated status" that other states grant, and ignore the part about states' traditional role in determining the requirements of marriage (since this was incidental to their main constitutionality argument ).

DOMA never restricted state determination of marriage recognition.  It empowered states.  It prevented a person from leaving the state that conferred upon him/her the "elevated status" and exacting that status from a state that elected not to grant it.  It prevented a rampant subversion of the traditional role of the states in marriage.

Marriage is a contract like no other.  It is a lot like an indenturing of people to each other (hence progressives' long history in reviling and weakening it).  It has both civil and religious dimensions (despite the opinion of past Courts) because it is first and foremost a social institution for social recognition of familial obligations--obligations inextricably linked to human biology.  Determining marriage is exercising power over the character a society and culture, which is why, ultimately, communities should really be defining it and determining what gets recognized and/or promoted in their community.  The power to determine something so fundamental to the character of society should rest as close as possible to locality and as far as possible from national interference as humanly possible.

Enter Big Government.  You can determine who gets married, sure. But Al and Fred are moving in next door, and their adopted children will be playing with your children and talking about their dads.  And Fred will be teaching your local school's sex ed class and educating your children about how to practice safe anal sex (there's an epidemic, you know), and may mention that he has a husband, which your children should know is completely normal (anti-bullying training).  (You are still free to teach your children your own unenlightened views in the privacy of your own home... for now.)  And here are the federal civil rights troops to make sure that all this happens and to protect their "constitutional right to marry the same gender and not be subjected to the indignity of disapproval" if your state doesn't like it.  So much for libertarians and their enlightened views of keeping government out of marriage by supporting "marriage equality."

One might say that it would be preferable to not have a Marriage Amendment, but leave it to the states.  In theory, I would agree that this is preferable.  But the recent Court decision has done so much damage to Congress' ability to regulate "full faith and credit" that at this point only an Amendment can give back the power of societies to determine themselves..

My view is between the libertarian and social conservative views.  Freedom of association is at the individual level, and is arguably fundamental and historical.  "Freedom to marry" is not a historical freedom, even less so than "the right to vote," and is a social privilege.  The individual right to vote is something apart from the right to a constitutional republic, which is guaranteed to the People of each state by our Constitution.  Even the 14th Amendment does not guarantee it.  It is one thing to tell people that they can't cohabit; it is another thing to tell society what they should call the cohabitation.  I'll explain more at the end...

It is of utmost importance what meaning of the text of a law (especially an Amendment) is rationally arrived at in the minds of the public at the time of its ratification, assuming that representation means anything.  And if the 14th Amendment means anything different from what it did when it was ratified, then it is no longer the law that was ratified through duly elected representatives.  That is dangerously close to the passing of ex post facto laws (forbidden by the Constitution).  And it subjects people to being found in violation of law without the due process of lawmaking by representatives.  Ex post facto without representation!  What irony.  If I can do something that is in violation of the 14th Amendment in 2013 that wasn't a violation in 1880, without any further Amendment, then the Court has made an ex post facto law, effectively.

The Left, which has repeatedly shown itself in favor of outcome over principle, has gloried in this.  It is timely that the Left has recently released an Oscar-winning propaganda piece that celebrates winning social reform through any possible subversion of our political process.   Read the complete recent decision with the dissents, and you'll see this movie in a new light.  A character in the film even chides Lincoln for admitting that he has become the tyrant the Copperheads accused him of being, especially with regard to "twisting meanings," after Lincoln explains the convoluted pretexts under which he took an action that was arguably unconstitutional.  (A "destroy the Constitution to save it" argument that haunts the Lincoln mythology.)

The trouble that Scalia points out about the Court willfully intruding into non-issues (their finding did not reverse any lower court decision) to make general pronouncements is not a quibble.  It is not a technical point.   If a bad law is made, a bad law can be unmade.  If a bad Amendment is added (as the Prohibition Amendment was judged to be), it can be re-amended (as Prohibition was).  However, bad jurisprudence has a way of  sticking around like the smell of rotting fish.  It is notoriously hard to unmake.  That's why progressives love it.  They get to destroy democracy in order to save it.  The undemocratic and persistent nature of constitutionality decisions is precisely why they need to be restricted to reparation of particular injuries in the scope of a particular case, if at all possible.

After the impotent nod to states' rights, everything about the Court's decision sets up the argument to use the 14th Amendment to invalidate state laws, in a logic similar (but not identical to) Loving vs. Virginia.  Scalia has gone so far as to show how the liberals could cut-and-paste the recent argument into a finding to overturn all state laws prohibiting same-sex marriage.

I find it interesting that the decision refers to DOMA as an exercise in oppressing a "politically unpopular" group.  Homosexuals are above average in income and wield enormous political power far out of proportion with their numbers.  (Homosexuality seems to arise more often among the affluent.)  They have Hollywood as an enormous, well-funded PR machine, which threw boatloads of cash at Barack Obama in 2012 when Obama "came out" in favor of marriage equality.  Gays are ridiculously over-represented among celebrities. Whereas polygamists have no movies lionizing them but do have a reality show that chronicles their everyday life, same-sex partners have fictional movies promoting them and no comparable reality show, in spite of having gay tv channels available.

Compare this to polygamists.  Unlike that for homosexuals, there are laws preventing polygamists from cohabiting with their multiple "wives."  Charlie Sheen may cohabit with as many women as he wishes--presumably may do so in Utah as well, as long as he doesn't pretend to be married to more than one of them.  Unlike homosexuals, polygamists (especially religious polygamists) are a politically unpopular group.  Which is why the ACLU hasn't made a big deal about its support for them. (ACLU support goes against the Left's hitherto disavowal of polygamy, and is best downplayed.)  While gays are complaining that not enough people are forced to acknowledge their marriages, Kody Brown and his "Sister Wives" are fleeing Utah to avoid criminal prosecution.  Meanwhile, denying civil unions (a privilege denied to sister wives altogether) to gays is called "inhumane." It's inhumane if it goes against a patently progressive cause.

Going back to my own views, I think it is a messy business interfering with cohabitation.  But if you accept liberal logic-- if you let polygamists cohabit, eventually you must embrace and celebrate the cohabitation lest they suffer the indignity of being made to feel less than more socially acceptable unions.

It would be better in general if people were free to make their own domestic union contracts-- and that states and communities be protected from having to call them marriages or elevate them to any special "dignity" or "status."   If you want the federal government out of marriage, then have the general contracts available for both polygamists and same-sex cohabitants and other sorts of unmarried couples who want certain kinds of benefits, but that these contracts are designed to not require recognition by states except as regulated by Congress (for example, benefits like estate/inheritance).  Have the federal government recognize these contracts (and recognize marriages as a special, the original, case of them) and deal with contractual obligations rather than deal in conferring "status and dignity."

Another point worth bringing up:  A Republican columnist in recent years asserted his opinion that DOMA was an unprecedented intrusion of federal government into marriage.  I assume that he may be unfamiliar with Reynolds vs U.S., the various federal anti-polygamy laws started by the fledgling Republican Party, and with the use of such laws to force Utah to make anti-polygamy laws part of its state constitution.  Here's what the NY Times had to say about the Reynolds vs U.S. decision: though "obviously directed at the polygamous practices of the Mormons, [it] merely extended over the Territories the common law in relation to bigamy which exists in every State of the Union."

And what is the common law?  Marriage in the common law is a contract between a male husband and a female wife for the formation of a household.  Common law is recognized and assumed in our Constitution.  It is founded on common law.   And the Morrill Anti-Bigamy Act was seen as a federal protection of the common law.  If polygamy is outside the common law, same-sex unions are even further removed.

But that's history.  If Nevada allows polygamy, other states will have to recognize it.  If Colorado allows a 40-year-old to marry a 10-year-old, other states must.  That's the law as currently written by 5 people that no one elected to write laws.  They have crippled the "full faith and credit" discretion of the People (i.e. Congress), not backed by judicial reasoning but by a fit of self-righteousness wrapped in a a cynical nod to states' rights.

Scalia and Roberts are completely right about the decision:  It is entirely disingenuous.  It is, in the real sense of the word, a travesty.  It is a mockery. It pretends to affirm state sovereignty while gutting Congress' ability to protect state sovereignty and setting up the argument to override state sovereignty.  And many, many liberals know this and smugly rejoice in its deviousness.  Spielberg might say that Lincoln would love it.  But a progressive need no further justification than the sense of moral superiority that wafts from the first page of this Court decision.

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