Infringed - What Congress Cannot Do

Suppose that section 8 of our Constitution had, after enumerating the various sorts of laws Congress was empowered by We the People to enact, it followed with disclaimers.  "No laws enacted for the aforementioned purposes will be lawful if they do any of the following:"

And now let's suppose that one of the deal-breakers was that a federal law couldn't infringe on the arming of the populace against the government.  Which would mean that any federal law that limits or undermines the ability of the citizenry to resist a regime they consider despotic is null and void.

The funny thing is that the Bill of Rights are simply Amendments that add things to the Constitution that the People desired (particularly those swayed by the Anti-Federalists).  The Bill of Rights should be interpreted this way.  Does the bill infringe in any way on the ability of the states and their communities to resist a government gone wrong?  The 2nd Amendment (along with the other Amendments in the Bil of Rights) amends section 8 of the Constitution by following "Congress can only do this" with "but only if their laws don't do any of these."

This cartoon is uncommonly right on the money:

Just in case the first 8 Amendments were to be interpreted as an enumeration of our rights (which they often are -- instead of amending our constitution to recognize another right, federal courts are employed to read things into the existing Amendments), the state legislatures had a disclaimer added that an enumeration of basic restrictions on Congress (a restraining order against tyranny) would in no wise imply that the federal government was entitled to infringe on other natural rights (e.g., the natural rights of parents to raise their children, the natural right of a person to defend his person and his home, etc.).

And then there's the 10th Amendment.  Congress is not allowed to make a law that asserts federal power over the power of a State, unless the Constitution explicitly empowers Congress in that way or explicitly forbids the States to assume such power.  Any federal laws that transgress this line are null and void.

As President, George Washington dated his executive statements from the signing of the Declaration, e.g. "in the 11th year of the United States, and yet the Declaration summed up the origination of the U.S.:  "that these United Colonies are, and of Right ought to be Free and Independent States."  It didn't say they (plural) ought to be reborn as "a new nation, conceived in Liberty," not reborn as a single new State.  Both the Federalist Papers and the Anti-Federalist Papers discuss at length how the Constitution (or how it might not) protect the People from their own federal government.

The Constitution was written to allow the free and independent States to protect their freedom and independence as States by wielding their combined  power while restricting the federal government of that unification for the very same purpose.

Would Lincoln Oppose Gay Marriage?

Was it Barney Frank who said that two vs. three people in a marriage was a quantifiable distinction for marriage, unlike the difference between a female wife and a male "wife"?   This is the logic:  Let's change slightly(?) the definition of marriage to be about two people and forget the common law roots of a marriage contract between the two distinct parties with distinct obligations.  Still two people, so not really that weird, they say.

Same-sex marriage will lead to polygamy?  Pshaw!  No, we want to keep marriage just as it is, between two people.  Completely orthodox.  The only people who want more than one spouse are weird Mormon perverts, and we don't care about them.  

Oh, so you don't care about their marriage rights.  I see. I guess they don't have all that Hollywood money (and Hollywood propaganda) to advance their cause.  You don't want them undermining society and complicating our laws with their weirdo lifestyles, eh.  "Those who deny freedom to others deserve it not for themselves."

Given Lincoln's strong backing of his party's anti-polygamy platform, it seems unlikely that he would have supported same-sex marriage.  (No, I'm not going to even get into the whole "Lincoln Was Gay" theory.)  Nobody made the argument then that polygamy would lead to same-sex marriage, because same-sex marriage was still universally considered a contradiction in terms, whereas polygamy was making a matter of making more commitments than the common law stated could be made in good faith.  Well, you may say, he was a man of his times in the Victorian age.

Click to enlarge

The National Republican Party's two moral planks:  anti-slavery and anti-polygamy.  (Both referred to as twin "relics of barbarism.")  It was all about legislating morality.  Did someone say that DOMA was the first intrusion of the federal government into marital policy?  Lincoln helped pass laws legalize confiscation of money from private bank accounts in the Utah territory as well as the anti-bigamy laws about which he purportedly told Brigham Young that these laws would not be executed on his people if they did not support the Confederacy.

Lincoln and his party very much believed in keeping marriage following its traditional common law roots.  The common law inherited from the British tradition, not the Bible, is what makes marriage law expect a limited number of marital commitments.

Given that, in superficial terms, the anti-polygamy stance was socially conservative* in the sense of preserving social values, while the anti-slavery issue was, for the South, a non-conservative* issue if conservative is , it would see that these issues have little in common other than determining the national morality through centralized federal power.  (*John J. Ray questions "the old equation of conservatism with a love of the status quo and a dislike of change and new arrangements." I avoid using "progressive" here to describe social change since this has nothing to do with the platform of the progressive movement, which would arise a few decades later, and the co-opting by liberal progressivism is incidental.)

In moderating his opinion on racial equality, Lincoln appealed to the following maxim, "A universal feeling, whether well- or ill-founded, can not be safely disregarded."  This intuition is largely behind our rules against pedophilia (well-founded in my opinion).  A splendid aphorism, though it doesn't itself explain Lincoln's political philosophy; and it could be that Lincoln's anti-bigamy fervor could have been more to sell himself better as a social conservative for those who would paint him as a radical.  For Spielberg, this would merely make Lincoln a shrewd politician.

In general, I don't think it makes any sense to talk about gay rights as a "civil rights" issue.  Comparing the issue of interracial marriage (brought to a head in Loving v. Virginia) to the issue of same-sex marriage is kind of an affront to polygamists (but who cares how those "perverts" feel).  It is the polygamist community that has been (and is) in danger of being brought up on criminal charges for cohabitation — not just for entering more than on marriage contract, not just for performing a "plural marriage" ceremony, but for living with more that one person.

A man/woman can have multiple partners, even extra-marital contacts, without being a felon, but a man can't live with more than one paramour and take care of them as domestic partners.  This exists in the state of Utah because of the federal government's involvement with Utah's state charter.   Meanwhile, a gay man can live with two or three "roommates" and do whatever he likes with them.  But the gay man is considered oppressed because if he has a ceremony with one of them, while it isn't a criminal offense, the society around him doesn't have to acknowledge it on a par with the institution as it's existed for millenia, whereas the polygamist has actually committed a criminal offense by living how he/she wants to live.  The polygamists aren't asking for society to treat it on a par with monogamous marriage (yet...); they would consider it fair if their lifestyle were decriminalized on a level with gay domestic partnership.

The decision in Hernandez v. Robles makes this comment on the difference between so-called interracial marriage (in reality, there really is no interracial marriage because race isn't real) and same-sex marriage:

But the traditional definition of marriage is not merely a by-product of historical injustice. Its history is of a different kind. The idea that same-sex marriage is even possible is a relatively new one. Until a few decades ago, it was an accepted truth for almost everyone who ever lived, in any society in which marriage existed, that there could be marriages only between participants of different sex. A court should not lightly conclude that everyone who held this belief was irrational, ignorant or bigoted. We do not so conclude.* 

Now on the one hand, we have polygamy which, while not ubiquitous, has been a common variant of the universal marriage tradition.  The Occidental tradition as it is reflected in the British common law we inherited does not recognize polygamy as something in particular to uphold and celebrate as a society, though this doesn't mean that society can't tolerate it, provided that states and communities don't have to recognize it just because it has been recognized in another state.  As long as a state is free to tolerate and not uphold, there is no slippery slope, and there is a means of the society determining its own values rather than the federal government determining what its values should be.  Polygamy has social precedent in societies of many kinds and has religious precedent in the Judaeo-Christian cultural roots of Western civilization.

Same-sex marriage does not have this precedent in either social or religious cultural roots.  It's not even close to being as much a candidate as an extension of the Western tradition of marriage the way that "plural marriage" is.  The "heterosexist" tradition is arguably universal because it mirrors survival-relevant instincts in our sexual dimorphism.  (Whew!)  Yet, polygamy has been much more criminalized.

If a polygamist could obtain a kind of civil union with his subsequent wives, a sort of civil agreement that would protect states' interests vis-a-vis the Full Faith and Credit clause, he and his wives would probably be pleased as punch.  And most states would be all right with making federal a legal framework for protecting each state's self-determination — which is precisely what DOMA attempted to do.

Which would be much more "progressive" than any view Mr. Lincoln held (or claimed to hold, at least).

The Inherent Colonialism of the Left

Not the most thoughtful analysis but I read a blog posting in which the author takes issue with those who "promulgate and promote the notion that, because of his father's background, Obama has an anti-colonial mindset. And what is so bad about that, anyway? Colonialism is: 'the control or governing influence of a nation over a dependent country, territory, or people.' The US started out as a colony and didn't care much for it."  No.  The U.S. started off as a group of separate colonies, and people in all the colonies wanted to enjoy all the rights of British citizens.  When this seemed impossible, they took to the notion of independence and the colonies became sovereign states.   If they didn't confederate, they wouldn't be able to resist the Crown and keep their independence, so sovereign states voluntarily joined a confederacy under the Articles, and then voluntarily ratified a document constituting "a more perfect union."  This document was crafted with the express purpose of keeping the federal government from exercising imperial authority over the states.  It defined essentially a sort of corporation of the states.

The problem with the sort of anti-colonialism that Obama appears to embrace (as D'Souza argues in 2016, citing among other things Obama's quick return of the Churchill bust and his position on the Falkland Islands) is that it is the progressive class warfare trope writ large.  If one nation is doing well and another isn't, the well-off nation must be bettering itself at the others' expense.  There is no economic win-win scenario scenario for the leftist.  (As I've noted previously, D'Souza's 2016 illustrates some problems with this view.)
Notice here also that progressives have had muted (if not missing) outrage over Soviet Russian colonialism over Easter Europe.  Very little to say about that. Maybe because all that was done in the name of spreading the wealth.

But I want to get into my principal theme here, that as much as the Left condemns intervention on the foreign front (though ignoring it under some circumstances especially if the "League of Nations" is for it) and downplays the need to be strongly armed against global threats, it believes in a government force against its citizenry (and disarming the public against such) and power being consistently more centralized and nationalized.

In other words, the Left seems to support the autonomy of foreign states, often when there is reason to think there is a great potential threat, while disdaining the autonomy of our domestic states whose powers of autonomy are nominally guaranteed by the Bill of Rights.  How many left-leaning citizens continue to be bothered by federal troops incinerating children in Waco, because the militarized ATF didn't like being repelled by armed citizens (a jury found in favor of the Waco survivors exercising their 2nd Amendment rights against armed invaders) and so they gassed them with tanks.  This happened under the direction of so-called liberal peaceniks.  It makes you wonder what would happen if American states decided to secede from the federal government.  Would people that balked at intervening in the affairs of dictatorships seriously send federal troops in to force subservience on penalty of death?

The assumption that the federal government will opt for the Lincoln precedent (level the states if it will keep them "in the fold") itself demonstrates the colonial attitude. (As Kathy Bates said in Misery, "It's for the best.")  When it comes to how certain Islamist nations treat their women, we have nothing to say (it is their country after all), but Supreme Court Justices here have reveled in their power, not simply to keep government powers within their constituted limits, but to expand federal power by dictating what the states can legislate.

Whenever anyone says that conservatives are going to outlaw abortion by overturning Roe v. Wade, you should recall that there was abortion before Roe v. Wade, in the states that allowed it.  The court decision  for Roe v. Wade (based on a lie if you now ask Jane Roe) took the matter out of state autonomy based on a dubious interpretation of Constitutional privacy.   Now your federal government can be involved in almost any matter between you and your physician except when it might involve the life of a defenseless feeling creature (that thing that is referred to clinically as a fetus).  The right to privacy disappears in those cases.  And the federal government is licensed to interfere with state affairs on the basis of judicially minted "reproductive rights."  Isn't that useful?

Here's what I suspect.  In that social upheaval during which the Democrats abandoned "states rights" after they lost their fight against civil rights legislation and the progressive radicals steered the party toward identity politics and America-blaming, something happened.  Not only did progressives see a party that was disoriented and ripe for the taking.  Not only did Democrat politicians see in young protesters a chance to demagogue their way into a new clientele/constituency.  I think that the most radical progressives and socialists and Marxists licked their lips when federal troops descended on Little Rock in 1957.  I think it was at that time that they started to see in identity politics the key to breaking the 10th Amendment protection against centralized, nationalized power.  There is nothing like an expansive court decision for making federal guns descend on a locality.  And there is nothing like morality questions for making expansive court decisions.

Now there are your everyday average progressive types that think, strangely enough, really do think that progressivism is all about individual liberty and putting all the power in the one place you can trust (the federal government) to guarantee those individual liberties.  Big Daddy Fed will protect you from your state, from your community, from your employer; just hand over your guns and all information concerning your economic transactions.  And Daddy will take care of you.  Uncle Ho, Uncle Mao, Uncle Sam.  Oh my!

Let's forget about Iraq and focus on Afghanistan, since Obama said that's what we should have done all along.  All this effort in Afghanistan just to exact revenge on bin Laden.  Wouldn't it have been nobler to go into Vietnamistan with the express purpose of replacing their government with one that would respect human rights?  Will the governments in Egypt and Libya be less oppressive to women and homosexuals?  Or is just having Islamist governments that are more hostile to Israel its own reward?

You say we'd be treading on their culture, interfering wrongfully, violating the Prime Directive?  (Supposedly though, the Civil War was (retroactively?) justified precisely for imposing a set of values.)   Why don't progressives think that they are doing the same thing to states all over the Union?  Why are liberals content to push their liberal morality and their secularism and scientism (their values) on the local conservative masses that are too stupid to know what's good for them?   In that case they think the imposition is justified.  Why, it's my country and I'm going to make everyone in Texas live how I know the country should live!  What about making Saudi Arabia live up to the standards that you know are right?  Oh no! I can't do that. It's not my country.  That would be unethical! 

When we are talking about foreign states, especially Muslim states, those states are given a dignity that domestic states here are not — that even though there may be large segments of their society that seem prone to oppression in the eyes of liberals or even in the eyes of most Americans, especially compared to any of the states of the U.S.!  Why?  How can liberals be so silent (or supportive!) about so many nations that have little or no commitment to liberty, and at the same time decry the U.S. (and its conservatives in particular) as theocratic, radical, ultra-religious, hateful, destructive, extremist, etc.  Comparing the Tea Party movement to Salafis?  Really?  ... But sharia as national civil code?  Oh that's just people keeping their culture!  Don't knock it if you haven't bothered to understand it!  Ah, the selective multi-culturalism of the Left!

And their selective colonialism!  An approach that, instead of following Reagan's successful peace through strength example,  tries to level the playing field where America is one of many world powers (like Israel is one of our closest allies in the Middle East) but the people can be coerced with overwhelming federal might into anything that is forced on the entire population (whether through judicial fiat or through populist demagoguery). Don't want the federal government to take your guns?  From your cold dead hands?  Judging by the rubble at Waco, from your incinerated dead hands!  Lying next to your incinerated children.  You citizens can't be trusted with weapons so we're going to Tiananmen Square your asses with these tanks.  ATF?  That's another name for an armed force and in Waco it was an armed force of berserkers turned loose on citizens without due process.

With the 10th Amendment being gutted, the states are once again becoming colonies, no longer self-determined, paying ever-growing tributes to an Empire in a tiny country known as the District of Columbia.  The only thing that makes us a true large Republic of smaller republics is respecting the 10th Amendment.  The only thing that warrants federal intrusion of armed forces is a threat to national security or a threat to "Republican Form of Government" (Article 4, Section 4 of the Constitution) in a particular state.  Liberals here vote for Empire as long as the imperial actions are limited to the 50 states currently under its jurisdiction.

One of the criticisms of the modern revolt against this imperial imposition, was that, unlike the modern Tea Party movement, the Boston Tea Party was a revolt against an evil corporation, ergo it was more like Occupy Wall Street than the modern Tea Party.  This is the first time I've heard that the Boston Tea Party had little to do with the 1773 Tea Act and with the Revolutionary War in general.  The "Destruction of the Tea" as it was known then was a political protest against a policies in which the British government was "picking the winners and losers" in colonial commerce in order to fill its coffers after a war in which many colonials had fought and died.  At the time, a little commercial terrorism (by local capitalists) was a safer political statement than confronting redcoats.  The East India Co. was practically a GSE of the British Empire, and the colonials were sending a message to Parliament that they recognized it as a way of funding the Empire.  So it may be a more complicated situation to analyze, but reducing the destruction of the tea to the same nebulous anti-capitalist outrage of people that envy the salaries of executives is an extremely superficial analysis.

This reminds me of the quick retraction (well, not a retraction, more like a sudden stunned silence) of the criticism over Sarah Palin's 1773 non-gaffe.  Don't party yet like it's 1773, people.  And yes, not everything significant that happened in the 1770s happened in 1776.  

In Good Faith: Lincoln and the Constitution

"I have no purpose, directly or indirectly, to interfere with the institution of slavery in the States where it exists. I believe I have no lawful right to do so, and I have no inclination to do so."
  ~ Lincoln

The issues surrounding the War Between The States and President Lincoln's legacy are complex.  Much more complex than the treatment it receives.  I think there is a special irony around the popular view of the subject:  "The Northern states waged a war over moral legislation (Uncle Tom's Cabin being an important piece of agitational literature in the matter) and forced immoral states to accept a moral view.  This is generally the reason for which Northern soldiers fought and were willing to die."   This view is reinforced by the sneering response to the question of whether slavery was the key issue of the Civil War.  To heap irony upon irony, the sneering is generally more pronounced if the pshawer emphatically believes that any legitimate results from the Iraq War were secondary to the real reason (generally involving oil).  And furthermore, that regardless of whatever good might have, it was unconscionable for the public to be misled about WMDs.  The argument for the War in so many words, supported by Congress, was not made in good faith.

Let's leave alone the unwillingness of most left-leaning citizens to question why progressives in the U.S. and in Europe are much more concerned about the freedom of Sharia-embracing, anti-Israel aggressors in the Middle East than they are about people of all faiths that are suffering widespread torture and oppression in central Africa from horrific regimes and sadistic "armies."

Let's instead consider what the Tenth Amendment means and what the ratification of the Constitution implied.  The Constitution represented, one would hope, a good faith attempt to form a "more perfect union" between sovereign political entities, or "states," by establishing a federal entity that could protect their autonomy from foreign enemies, from domestic threats to what is called "republican government" in our Constitution, and from the federal government itself (as argued in The Federalist Papers).  On that last threat, the Constitution contained many key concessions to the Anti-Federalists (who would later be the Democratic-Republicans).  The Bill of Rights, especially the 2nd and 10th Amendments, being the lynchpin addressing these concerns.  An armed populace (call "militia" in the 2nd Amendment) and recurring Congressional approval to maintain federal armed forces were the means of guaranteeing that 10th Amendment federalism was maintainable.

Now, considering that there was a lot of Northern disapproval for slavery from the beginning, and considering that the maintenance of slavery was very important to the Southern states, does anyone think that it is particularly likely that the Southern states would have ratified the Constitution if they thought that any of the follwing were the case:  (1) that the Constitution guaranteed personal liberty, (2) that federal power could trump a state's right to determine the criteria for personal liberty without a voluntary Amendment process, or (3) that if the federal government were to try to override a state's political interest at any time, the state would not be able to secede from what was ostensibly a voluntary union?

These ideas, I believe, are things that are easy to hold as people that grew up with states seeming more like enormous counties rather than federated nation-states, who grew up with a post-Civil War Pledge to "one nation . . . indivisible."  

A lot of people would point to the good that came out of the Civil War.  On this and several other issues, however, I think this is partly a red herring.  If one argues that an act has to be legitimate because some good came out of it, this is essentially an "ends justifies the means" argument.  As popular as this is among people that celebrate end-runs around Constitution, I believe we should base legitimacy on other grounds.

A contract that is made to exploit some meaning or phrase that one of the parties is misled about is not a contract that is made in good faith.  If you have to mislead people about an issue in order to get your way, does that make you a savvy statesman or a corrupt politician?   Lincoln stated several times that he was not waging war to end slavery.  However, today most of the arguments validating Lincoln's war base it on this overriding moral high ground.  This implies that he misled everyone, North and South, as to his real motives in waging war.  A full two years into the War which wasn't expected to last so long and with so much attrition, the Emancipation Proclamation effectively acted as a desperate extension to the policy of economically devastating the South as to insure its submission.  It did not outlaw slavery -- it simply eliminated all slave property claims only in the seceding states.  Lincoln had given up on any amicable resolution and resolved to the utter devastation of the South in order to meet his overriding concern that the Union be "perpetual."  The Union is a roach motel: you can check in but you can't check out.  Or the Hotel California.

So Lincoln claimed, contrary to his apologists Left and Right today, that he wasn't waging the war to help  the slaves.  The implication would be that this was a Noble Lie perpetrated in order to wage the war and liberate the slaves.  Indeed, maybe this pragmatic ends-justifies-the-means ethic is held by the current President in his temporary abandonment of gay marriage in order to gain the Presidency.   One would think that this particular Noble Lie extends back to 1787, in which the South was tricked into thinking that the states were truly sovereign, that the Union was voluntary, and that there would be no coercion by federal forces that would resemble the coercions by the British government in the 1760s-1770s.  The South was tricked into agreeing to the Northern ideal of personal liberty and there was no escape from it in 1861.

[The authors of the Declaration] meant simply to declare the [natural] right [to personal liberty], so that the enforcement of it might follow as fast as circumstances should permit.
  ~ Lincoln   

The popular feeling about the Civil War, that its eventual result in the 13th Amendment is its justification and in turn its justification must have been the impetus of the war, is almost unshakable.  It is so pervasive that one can't question the whole affair without being accused of being pro-slavery.

But here among many things that Lincoln purportedly tricked the American public about are these:  He claimed to not support the social (as opposed to political) equality of blacks:

I have no purpose to introduce political and social equality between the white and the black races...
  ~  First Lincoln-Douglas Debate 

And again

Free them, and make them politically and socially, our equals? My own feelings will not admit of this; and if mine would, we well know that those of the great mass of white people will not.

And again

Now I protest against that counterfeit logic which concludes that, because I do not want a black woman for a slave I must necessarily want her for a wife. . . . In some respects she certainly is not my equal; . . .

Lincoln doesn't sound so much like a "classical liberal" (certainly not like a modern liberal or modern conservative) in these statements, and certainly sounds like he would be accepting of the "separate but equal" policies promulgated in the 1950s.  It will be said, of course, that he should be understood as a "progressive civil libertarian" in context of the times.

See also http://www.creators.com/opinion/walter-williams/parting-company.html

If the 51st State Were Muslim

There's little doubt in my mind that Obama's previous stance on gay "right to marry" (as was that of Bill Clinton who has also "come around") was calculated to increase his odds at winning the Presidency.  Even when my opinion of him was at its peak, I didn't doubt that Obama was more liberal than his moderate trappings.  The opinion of his VP (or that of his daughters) would not ordinarily change his mind in an election year.  So why would Obama take such a risky decision unless he felt that he had so little credibility in his finance-related policies that he had no choice than to stop pretending that he is a moderate and start crusading for his side of the culture war?

I think people generally have a right to live how they want to live when it isn't obviously causing harm.  How much control municipalities have over that right is something that is yet to be truly ironed out, since there is, and has been, different ideas about what is bad for the community.  But there is also the fundamental question of how much power a community (no, not a nation, a state perhaps, but not necessarily) has the right to decide how their children are raised, what they are exposed to.  There's a balance between freedom and democracy, between protecting the individual from the community and protecting the community from the individual.

A recent NY Times op-ed (5/9/2012) opined that marriage rights "are too precious and too fragile to be left up to" the democratic process.  The scope of people's inalienable rights are best decided by wise judges.  If the wisdom of the people is scary, I find much scarier the wisdom of judges basking in the warm light of their own enlightenment.  Liberals seem to like the most fundamental issues to be decided in the least democratic manner.  Look up Thomas Friedman's lament about our "one-party democracy" [sic] in which one political party is allowed to interfere with the plans of another.  (What a world!)  If I had a dollar for every liberal that praised an authoritarian goverment with an atrocious civil rights record, I think I'd be  rich.

Now, some of the same people that love Chavez and Castro, deplore DOMA as a civil rights violation. Hmm.  Here's where even many conservatives get it wrong: Many people think that DOMA is the federal government's lone foray into marriage rights. Wrong. While homosexuals can have a ceremony, call themselves married, wear rings, and announce their wedding without committing a crime, it isn't the same for the people on "Sister Wives," who never ask for or expect the privileges of the legally married and yet are potentially in trouble with the law for living as they do.  The "civil rights movement of our generation" would gladly redefine marriage in a way that would leave these people out in the cold.  They are, after all, "fundamentalist" religious people--not a demographic the Left is remotely interested in.  And most religious people, orthodox Mormons included, are not willing to fight for them.  The ACLU's official policy is pro-plural marriage, but this seems to be merely a plank for challenging the definition of marriage.

It is not a crime in most of the U.S. for a man to father children by several women simultaneously.  In Utah it has been a crime for a man to cohabit with multiple women or otherwise pretend that multiple women are his wives.  This has been true since Lincoln orchestrated the passing of an anti-polygamy law (that he promised Brigham Young not to enforce as long as the LDS would not make trouble in the Civil War), which also made it legal for the government to seize excessive riches from religious corporations in Utah.  Utah was coerced into enshrining anti-polygamy into state law as a condition for statehood, and there it remains enshrined.   I suspect that in Utah a man can father children by as many women as he can as long as he doesn't live with them. I suspect a man could be living with two male sexual partners and not be violating any law in Utah.  A man could probably be living with his legal female wife and their shared male lover (polyamory) and not be violating any law. No, I think it's only a man cohabiting with more than one woman that violates the laws that Utah was coerced into passing by the federal government.

Many equate gay marriage with the issue of interracial marriage.  After all, isn't Loving vs. Virginia a precedent for gay marriage?  There's already a federal ruling that it doesn't apply.  But that aside, I think that there are at least two fundamental differences between the two issues.  One is that gender, unlike "race," is not an arbitrary distinction.  Otherwise, men and women's restrooms are "separate but equal," and the fact that there are double standards on who can walk around barechested is an affront to the Constitution.  I think, in general, there is more physiological and neuropsychological difference between a brother and a sister than between genetically diverse people of the same gender.

The other fundamental difference is historical tradition.  Vastly different cultures have enshrined the idea of marriage as between a man and a woman.   It's not religiocentric or ethnocentric.  In Greco-Roman cultures where homosexual relationships were tolerated or even encouraged, there was one kind of marriage.  A read about an Indian man recently who was told by his mother that he could "f*** an alligator" for all she cared as long as he married a woman and had a family.  Modernism and feminism has deplored the historical tradition of marriage with little softening by postmodernism and little care for the history of the economics of households.  A new marriage for a new age.  (Polygamy, by comparison, is a historical and recurring flavor of marriage and was a part of the life of various heroes of Biblical tradition: Abraham the "father of our faith", Jacob/Israel, and David.)

Incidentally, I never understood those who opposed interracial relationships on supposedly Biblical grounds.  Moses had an Ethopian wife after his Midianite wife.  Boaz, the great-grandfather of David, had a Canaanite mother and a Moabite wife.  Joseph had an Egyptian wife. David offended God by stealing the Hittite's wife.  (God seemed to honor that marriage.)  Everybody was marrying everybody else. Semites marrying Hamites marrying Japhethites. All good. Biblical references supposedly against interracial marriage--pretty weak by comparison.

Back to gay marriage...  My opinion would probably not be considered conservative by many "paleoconservatives" in that I think that not just civil unions or plural marriage but cohabitors in general and non-cohabiting betrothals should count for certain rights that are applicable to "choice of law" rules across state boundaries. A state would have a right to not recognize a second marriage made in a state where polygamy is legal, but should still be subject to certain contractual obligations (regarding inheritance, for example) implied by the civil contract made in the state of origin.  Too messy?  We already somehow manage something like it.  Why should a husband be allowed a hospital visit but not a fiance?  Why should someone be admitted just because he claims to be a blood relative while a domestic partner is not allowed even if the patient specifically vouches for him/her?  A state could pass a law from which a person could have a notarized statement that is recognized in a hospital for visitation rights.

But I disagree with Obama's regulatory czar Cass Sunstein that marriage as a legal concept should be abolished.  Marriage law has its basis in English common law as it is the basis for federal law and state law for almost all of the states.  Common law is assumed and referred to by our Constitution.  Marriage is a civil contract which is entered by a husband and a wife in which the two parties have separate responsibilities and different contractual expectations.  Which role you can assume is determined completely by your gender.  Statutory law can modify it, adjust it, and has done so over the years, but not redefine it.  

Here's a thought experiment I often turn to:  Imagine an Islamic country like Iraq, as though Maryland was currently as Muslim as it was once Catholic.  Let's call it Mohammedland, instead of Maryland--or Americastan, if you prefer.  Let's say that we had a national interest in setting up a democratic government with free elections, that the people of this land cry out to us to give them democracy.  Let's say further that Mohammedland eventually gets adopted as a state after 10 successful years as a democratic republic. For five years, they've lived without oppression.  But they have a proud Muslim tradition.  Their Department of Justice has words from the Koran prominently displayed on the building with a picture of the Dome of the Rock where Mohammed was taken to Heaven.

Their legislature starts out with a call to prayer, and there is an area outside where legislators may voluntarily pray toward Mecca if they are Muslim.  No one is required to be Muslim to serve in the legislature, and the one non-Muslim legislator from a county with many Catholics, Jews and Armenian Orthodox, well, he observes the prayer moments in respectful silence. They have a public school system where the kids learn scripture from the Quran as part of their cultural history.  There's no religious persecution but Islam permeates the culture and the civil life. They talk about evolution in school but they also talk about criticisms of evolutionary theories in school (they even refer students to books about intelligent design they keep in their libraries); 94% of the people believe in special creation after all.  They recognize polygamy but not same-sex marriage.  Homosexuality is not a crime as it is in many Muslim countries, but the Americastani constitution precludes homosexual marriage.  The government considers homosexuals as first-class citizens.  and allows them to live as they will, but 97% of the population considers it a terrible affront to their culture and society to recognize a homosexual partnership as a social institution.

After 10 years of their democratic experiment, they enter into statehood with its privileges, thinking naively that the Constitution really does reserve to the states powers not specifically granted to the federal government.  They don't realize that their educational curricula will be cleansed of Islam (and anything remotely favoring theism) for the benefit of their secular and Judaeo-Christian minorities that might be offended by references to Mohammed.  Criticism of of the Modern Synthesis of evolutionary theory will be outlawed. The words of the Quran will be scoured from their Dept. of Justice; the Dome of the Rock will be gone.  An atheist will sue their state over the existence of the dedicated prayer area in the public forum of the legislature, and he will win in the Supreme Court.  There will be a private ecumenical chapel instead. Their children will be taught liberal sex ed that covers safe anal sex. Their children will get abortions without their permission or knowledge. They'll be read books promoting gay marriage, and attend state universities where liberal professors will tell them to question authority as long as the authority is parental or Muslim. Their tax dollars will be used to not merely prepare their children to engage the world on a new intellectual level but to indoctrinate their children against their culture.

Now if we had set up that kind of system in Iraq, there would be no shortage of progressive voices crying out against our arrogant overriding of their culture, intrusion into their sovereignty, redefinition of their culture.  The relativists would all be standing up for Iraq because it is a sovereign state, unknowing (or conveniently forgetting) that our states once had sovereignty.  The Middle East rightly fears Westernization and fears democracy, because they've seen how Europe and the U.S. has redefined "democracy" as secularization.  We've given them firsthand evidence of how you can't forbid Congress from respecting a mode of worship without forcing secularization on a culture.  So why should we be suprised if they repeatedly bomb schools we set up in Afghanistan even if they are being set up by a President with a Arab name?  They've seen what liberals mean by "democracy."  In a "democracy," even a representative one, even in a republic, some things are "too fragile and precious" for goverment by the people; they are instead determined by an elite group of unelected academics. Welcome to Utopia, our Muslim friends. Resistance is futile.

In California, the Prop 8 episode was interesting.  The homosexual comunity was "betrayed" by the African Americans and Catholic Latinos that didn't share the "progressive" view of marriage. (Some liberal commentators noted ironically that the black voter turnout for Obama might have kept Prop 8 from failing.) They vilified the Mormons instead though, which accounts for a relatively tiny minority out here.  Gay rights activists said the facts were deliberately skewed about the effect of the court ruling on marriage.  People were "crazy" to think that their children would be exposed to alternative kinds of marriage.  Is it crazy?  Is it crazy to think that once a state redefines marriage, all of a sudden a special interest group will point out that the curriculum is "hetero-centric" and unfairly biased toward heterosexual marriage as uniquely normative?  (I smell hate crime.) That homophobia will be seen as an epidemic problem that can only be cured by exposing kids at a early age to images of happy homosexual marriage and scientific(?) studies that all lifestyle is nature not nurture?  As one left-center person put it, "They're lying about it not affecting education--it would have to have an effect--but so what?"

Does anyone really think that if a law had been proposed granting greater status to civil unions and domestic partnerships (those longed for hospital visitation rights, for example) that it wouldn't have passed?  After Prop 8, Orson Scott Card wrote about Californian Mormons who had gay friends that would no longer speak to them because they had voted for and endorsed Prop 8, even though their Mormon views had not changed and .  Concerning Prop 8, since the resulting riot, most people probably follow a "don't ask, don't tell" policy. (Unless they voted on the side of liberty, the enlightened choice favored by the non-Hispanic white voters of California. Don't give me that look; it's the liberals that are constantly reminding us what category we belong in.)

I don't know. On the one hand, I've disliked the whole concept of being licensed to marry. Do I need the state's say-so? For matters of custody though and "community property", there may be very important rules for distinguishing between living together and having a semi-permanent union. And there is also a community's ability to control what their kids hear and how they're raised, and what impressions they get in their mandatory attendance at school. I think it was disingenuous in the Prop 8 that a marraige redefinition wouldn't affect what kids are told in school. The ACLU already used a kid's harrassment to wrangle a no-opt-out same-sex training. What will it be like when all of a sudden the curriculum unfairly portrays heterosexual marriage as the norm? One kid's pain is another progressive's golden opportunity. Many people don't care what their kids see in school; and the parents that do, well, their opinion really doesn't matter.

I read one blog that made an argument that DOMA was unnecessary BS because "choice of law" already kept one state from overruling another state's laws. All DOMA seems to do is ensure that a state can't be coerced into acknowledging marriage laws that aren't their own. This is the part that is hated most, and yet it is the one that does most to protect state sovereignty. The part of DOMA about federal acknowledgement also protects states from "end runs" around state law. So it ensures that states can continue dictating their own policy. Since DOMA there have been suits where people have married in one state and tried to get it recognized in another--citing the very "full faith and credit" clause that people were "ridiculous" to worry about. In one such suit is was specifically recognized that there are thousands of federal laws referring to marriage, and DOMA was meant to keep them from being co-opted for relationships the people's representatives never intended the laws to apply to, and to keep one state from dictating national policy.

So I think that the individual has a vested interest in his/her personal liberty to have relationships without society's "permission", but I also think that a state and a community have a vested interest in how that relationship is recognized on a social level. I think almost any proposition to grant civil unions more privileges would have gone over here in CA. I don't think progressives want that. I think the hard left wants the next generation to be malleable and be shaped into the utopian society, free of the ignorant superstitions of their parents. It's not enough that they own the entertainment world, but they want the schools as well.
Now, as I understand it, there is also common law with regard to marriage. The Constitution, federal law, and most states' law is based on English common law. Marriage is a civil binding agreement with two parties: a husband and a wife. The two roles have different responsibilities and liabilities, and you don't get to choose which role. (Feminism would denounce it as sexism, but then feminism has been fine with certain inequalities.) That is the basis and precedent of the social law, subject to modification (but not total redefinition) by democratic statutory revision.

I think a provision could be made for protecting the economic and personal interests of domestic partners, polygamists, civil unions, common law marriages across state lines without affecting a state's protection against recognizing a marital status that it considers antithetical to its culture. But it has to be something that the states can live with. Something that doesn't involve North Carolina being forced to give their kids "sensitivity training."