Patterico's Pontifications

8/14/2010

Starting with Chapter Two

Filed under: Constitutional Law,Current Events — Jack Dunphy @ 9:33 pm

[Guest post by Jack Dunphy]

“When you don’t win an argument on the merits, change the subject. That seems to be the favorite tactic of groups opposed to marriage equality for same-sex couples.”

So begins an op-ed piece, “Lose the ruling, attack the judge,” in Friday’s Los Angeles Times. The column was written by Jon W. Davidson, the legal director of Lambda Legal, the organization that brought the federal lawsuit attacking California’s Proposition 8, so it comes as no surprise that it supports U.S. District Court Judge Vaughn Walker’s decision to rule the proposition unconstitutional.

But note where Davidson chooses to begin his timeline, rather like picking up a book and starting with chapter two. I recall there being an election some time ago, one in which a majority of California voters — for the second time — made known their preference to define marriage as it has been understood for thousands of years.

I propose an alternative opening for the column, one that more accurately reflects the sequence of events: “When you don’t win the argument at the ballot box, as indeed advocates for homosexual marriage have failed to win in even a single instance in the 31 times they’ve tried, take the campaign to the more accommodating venue of the courtroom. There, a lone judge, blessed with finely attuned senses denied to both his predecessors and the ignorant proles of the voting public, can discover a constitutional right that mysteriously remained undetected through all our nation’s history. That seems to be the favorite tactic of groups advocating for same-sex marriage.”

–Jack Dunphy

44 Responses to “Starting with Chapter Two”

  1. I like it. I like it a lot.

    John Hitchcock (9e8ad9)

  2. The proposition stands accused, and at this time convicted, of being unconstitutional. Is the Constitution or is it not our bulwark against the pure mob rule of democracy?

    The Constitution is what it says it is, not something bendable and pliable to match what we wish it to mean.

    Personally I see nothing wrong with a civil contract of “marriage” detailing a minimum set of requirements for entering into it, requirements on the partners during it, and means of dissolution and disposition. I see nothing wrong with a religious contract that lays on stiffer requirements. Said religious contract must not reduce any of the requirements. Thus it may permit only heterosexual couples for a given church’s license. It may require of its married couples higher standards. I suppose they could prohibit, in the church’s eyes, divorce. A church’s contract should not be able to require, for example, that the wife acquiesce to being beaten or to marital rape. In this case the wife would have the civil contract to fall back on. To ensure that any church marriage would automatically be considered a civil marriage even if no marriage license is taken out. (Recording it is a good idea but “palimony exists”.)

    {^_^}

    JD (9ac83d)

  3. Who the judge is, and how he and counsel have approached this case, have affected it in profound ways so far, and one can reasonably assert that those things have affected or even determined the outcome at the trial court level.

    But ultimately — at the SCOTUS level — I don’t think these things will make much difference.

    Beldar (6921f4)

  4. Crickets chirp as we await the publication by the Dog Trainer of the counterpoint op-ed.

    Icy Texan (ca7093)

  5. made known their preference to define marriage as it has been understood for thousands of years.

    You know anytime, anyone uses as part of their their argument, this or that has been thus and such for thousands of years so it shouldn’t change, I get a little leery.

    I am not an anthropologist, so I can’t say well there was this or that society which condoned gay unions/marriages. I think some of NA Indian tribes had a place in their society for those different, including gay. The Romans too I think. There were likely others. Don’t know if these were considered unions with rights or privileges as set out by those societies or not.

    What I do know is marriage has not been an institution between one man and one woman for thousands of years.

    Now you might make the valid argument that it’s nearly always been between men and women, but it’s still not in many places between one man and one woman.

    I really do wish that this was being decided by the people and their elected representatives. When the courts get into the business of making social policy, it screws up everything. Pisses people off, as it should, and turns what would likely be a natural evolution by society, into a war zone.

    Eventually we’ll have gay marriage or the government will get out of the business of defining marriage altogether (that would be best, but it ain’t gonna happen), where we’d have only civil unions for the purposes of tax, property, medical decisions, inheritance, etc. Marriage would be a separate institution condoned by churches and other institutions that people choose to belong to. And we’d still have gay marriage… so it’s pretty much a done deal at some point in the future.

    But one thing is sure. Marriage has not been one thing or another for any length of time, through out human history. Even in western society. 60-70 years ago, marriage was for all intents and purposes, forever, and divorce nearly unheard of regardless of circumstances. That changed with no fault (talk about a society deciding to destroy the institution of marriage as it had been known to be in that culture for a couple of hundred years or more).

    The other and most important thing I know, is conservatives do not need any distraction from fiscal issues right now.

    Gay marriage, abortion, all of it should move to the far back of the bus, sit down and shut up, while we try to get the bus under control. Those issues have been front and center long enough. We elected or supported anyone who voted correctly on those issues, no matter their ethics or spending habits.. and look where we’re at.

    sookie (010cd9)

  6. I really wish this site posted the comment the way it looks in the preview. That should have been several paragraphs…

    sookie (010cd9)

  7. Most astute and excellent observations by Dunphy

    DaMav (6ab8ce)

  8. that’s not JD I have no idea who that is I’m going to sleep

    happyfeet (19c1da)

  9. Jack Dunphy is a LAPD officer who has been invaluable in untangling lies and other cant like
    those of offered by Lambda, to serve politically correct ends

    ian cormac (2e065c)

  10. sookie: When you refresh your browser, you’ll see something that looks much more like what you saw in the preview.

    Beldar (6921f4)

  11. Mr. Dunphy makes a good analogy/point in likening the op-ed’s argument to starting at chapter two.

    I also think it is another example of a classic act ( or manifestation?) of projection, accusing others of what is actually going on in one’s own mind, individually or collectively.

    As I see it, the argument for SSM is this:
    1. some people want it
    2. if you argue being gay is like being black, and marriage is like voting, then it makes sense
    3. besides, what would be the problem?

    But the propositions in 2 are not necessarily convincingly argued, and the question in 3 is treated as rhetorical with the answer as nothing, whether than a legitimate question with potential answers that need to be examined for any validity.

    So, I see the startegy as largely ignore the merits and rely on sentimentality, that we don’t want to hurt anyone’s feelings. Well, maybe I don’t want to hurt anyone’s feelings either, but sometimes that comes with the territory, and not for “mean” reasons.

    MD in Philly (5a98ff)

  12. “whether” should be “rather” in the next to last paragraph, sorry.

    MD in Philly (5a98ff)

  13. Had the people voted to accept same sex marriage, I would have accepted it in spite of voting against it. Since this has been imposed by a single judge, who seems to have a political agenda, I will not accept it. The judiciary has usurped the legislative power, and for that matter the executive power, for a long time. It is time to impeach and remove some judges. They serve for life but as a condition are required to conduct themselves in accordance with the Constitution and the laws.

    When rights assured by the Constitution are in conflict, it is the judiciary’s job to protect and define those rights. It is not their job to go searching for “rights” that only apply to specific groups and elevate them over those that apply to all. Our out of control courts are acting as agents of a political agenda, and one that cannot win at the polls. Judges are not gods.

    Ken Hahn (2a03d0)

  14. I think you hit the nail MD.

    2. being gay is not like being black. Enshrining individual sexual deviancies opens the door for other less socially acceptable perversions, currently punishable by law, to be ruled as just following one’s nature.
    The rapist can’t help himself, see. He was born that way. You can’t bar the perp from living in such and such proximity to other folk. You can’t put them on a watch list, because these things would be punishment for the “condition” they were born with.

    papertiger (ce4e0f)

  15. “The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbor to say there are twenty gods or no God. It neither picks my pocket nor breaks my leg.” -Thomas Jefferson

    Horatio (55069c)

  16. I have a question.

    Since: a) the court’s ruling clears the path for marriage to be interpreted outside and beyond its historical status as being between a man and a woman, thus creating new, socially “relevant” definitions of what “marriage” “is”, and also

    b) American law grants the status of a “person” to corporations under certain circumstances…

    Isn’t it reasonable to demand the right for two corporations to “marry” and have their union be considered not a “merger” but a marriage, with all the potential business advantages that could bring?

    For instance, the two married corporations could then adopt all their employees and label them “children.” Maybe then they wouldn’t have to pay them anything, since it’s now a “family” business…

    d. in c. (6d8c96)

  17. What I do know is marriage has not been an institution between one man and one woman for thousands of years.

    What I do know is that you don’t know what you’re talking about.

    Hey, remember way back when (yesterday) when you were pretending that “gay marriage” was not an issue which deserved anyone’s time? Who’d have guessed that you actually care about the issue a whole lot? In fact, that you care about it more than the spending issues you pretend to worry about.

    Subotai (365578)

  18. The real issue here is not “gay marriage”. It’s the most important issue in all of politics, perhaps in all of life: Who decides?

    Are the people the ultimate deciders, or the judges? Is this a country where the people govern themselves, or a country where the people are governed by an unaccountable elite? These are the question the American Revolution was fought to resolve. Clearly, they are still not settled.

    Subotai (365578)

  19. “When you don’t win an argument on the merits, change the subject. That seems to be the favorite tactic of groups opposed to marriage equality for same-sex couples.”

    Seems to be the rule for ANY topic for discussion when liberals are on the losing side.

    Dr. K (1c5e6a)

  20. Ed Whelan has a series of articles on the National Review critical of Judge Walker’s conduct.

    And before one thinks that the sole reason for the criticism is a disagreement with the ruling as a matter of law, note that Whelan did not level similar criticism towards Judges Joseph Battailon and Tena Callahan.

    But the propositions in 2 are not necessarily convincingly argued, and the question in 3 is treated as rhetorical with the answer as nothing, whether than a legitimate question with potential answers that need to be examined for any validity.

    And civil unions essentially reframed the debate.

    In 1971, when Baker v. Nelson was first heard, the only way of getting the legal incidents of marriage was in a marriage. But when civil unions were invented, they effectively “divorced” the issue of the definition of marriage from the issue of the legal incidents of marriage.

    Michael Ejercito (249c90)

  21. I am not an anthropologist, so I can’t say well there was this or that society which condoned gay unions/marriages. I think some of NA Indian tribes had a place in their society for those different, including gay. The Romans too I think. There were likely others. Don’t know if these were considered unions with rights or privileges as set out by those societies or not.

    What I do know is marriage has not been an institution between one man and one woman for thousands of years.

    What I understand you to say is that you don’t know anything about this but your mouth (or typing fingers) would not shut off.

    Diarrhea of the keyboard ?

    Mike K (d6b02c)

  22. What I do know is marriage has not been an institution between one man and one woman for thousands of years.

    Well, Subtoi, perhaps you neglect your Bible. Most ancient cultures allowed polygamy and some modern current ones still do. Even groups that now oppose SSM allowed polygamy in the recent past (e.g. Mormons).

    So, the statement above is technically correct and IS at least a partial refutation of the idea that one-man-one-woman has been the inflexible rule.

    Kevin Murphy (5ae73e)

  23. This just in to our news desk… Accused Craigslist killer Philip Markoff(D) found dead in jail cell… developing…

    ColonelHaiku (2deed7)

  24. “So, the statement above is technically correct and IS at least a partial refutation of the idea that one-man-one-woman has been the inflexible rule”

    It doesn’t have to be (and never had to be) THE inflexible rule. What matters is that it has been OUR rule.

    We’re not bound by the customs of the Yanomami or the Seljuk Turks. But we in the West DO have our OWN customs, and yes, we’ve been bound by them for thousands of years. (see ancient Rome, that’s 3 millenia ago, and so yes, thousands of years.)

    Now it’s certainly true that we might elect to change our rules and customs over time, so… goodness me! Did I just use the word “elect”? Didn’t we in fact hold an election on this very subject?

    “One man, one vote” is a pretty principle, if the one man in question just so happens to be a federal judge.

    d. in c. (ceeb9f)

  25. ______________________________________

    60-70 years ago, marriage was for all intents and purposes, forever, and divorce nearly unheard of regardless of circumstances.

    Which illustrates the dumbing down of society. In effect, the left is trying to turn America into one big version of the public-school classroom of today—better yet, a classroom in a stereotypical urban environment full of both dysfunction and pro-Democrat-Party sentiment.

    I’m sure some of the most fervent supporters of same-sex marriage — who now so enthusiastically embrace the concept of “marriage” when it comes to two guys or two women getting hitched — would be quite unhappy about making divorce less quick, less easy.

    BTW, some have claimed that the idea of legalizing polygamy, unlike SSM, can be opposed by government because it would cause too much paperwork. Well, think of the huge mountain of paperwork caused by quickie marriages and quickie divorces (aka, the “Hollywood marriage”)!

    Another irony about gay activists rallying around the idea of SSM: Male sexuality in general is very non-monogamous and male-on-male sexuality is even more so. Homosexuality involving males is notoriously promiscuous. So for many gays or, more accurately, bisexuals (referring to males in particular) to be shedding tears about not having access to marriage deserves a big guffaw.

    Mark (411533)

  26. Greetings:

    Actually, my version of the book starts back around 1973 or so when the American Psychological Association democratically voted to take homosexuality out of its Diagnostic Manual. No science, no government grants were required or involved. Good old democracy. Yesterday’s sexual disorientation became today’s sexual “orientation”.

    11B40 (dbea3a)

  27. BTW, some have claimed that the idea of legalizing polygamy, unlike SSM, can be opposed by government because it would cause too much paperwork.

    That idea would be justifications for denying polygamous unions some substantive legal benefits and protections. If a partner in such a union is in a coma, who gets to pull the plug?

    But this Prop 8 case proposed a new constitutional paradigm, where denial of “social meaning” and “cultural meaning” constitutes an equal protection violation.

    So what justification does the state have in denying social meaning, even denying a feel-good license with the same substantive legal effect as adoption certificates that came with Cabbage Patch Kids?

    Michael Ejercito (249c90)

  28. The sad thing about this whole affair is that by taking this to the courts the gay community (I suspect chivvied along by the progressives) have almost guaranteed no end to this issue. By using the courts to try to gain victory on an issue the people should decide at the ballot box will allow the opponents of SSM to use the same tool down the road when the political balance is a little more in their favour (a Governor and a AG that actually support the will of the people). It could also massively backfire if this gets to the Supreme Court and the right of the people to choose is upheld.

    The shame about this whole thing is that if the gay community hadn’t been as radicalized and was willing to wait a few years they probably would have won. The vote was 52.24 to 47.76. A 2.25 percent swing would have done it for them and I’m sure the Hollywood PR and Ad firms would have looked at what worked and what didn’t and could have come up with a winning campaign. If they won then conservatives, who tend to accept things like elections and free votes probably would have accepted this. Until of course some left radical gay decided to sue to force a Catholic Church and Priest to marry him or the church would lose it’s charitable status and the whole dance would begin again.

    scr_north (90dcdd)

  29. Well, Subtoi, perhaps you neglect your Bible. Most ancient cultures allowed polygamy and some modern current ones still do.

    Perhaps you’ll get around to telling me which culture, ancient or modern, has ever allowed gay marriage.

    I’m tickled pick that Islam still allows polygamy. Islam also allows adulterers and gays to be stoned to death. What’s your point?

    Subotai (365578)

  30. If a partner in such a union is in a coma, who gets to pull the plug?

    The woman designated “Wife 1,” or whatever. Or in far fewer instances (since polygamy involving multiple males but only one female is not only quite rare, but just about non-existent), “Husband 1.”

    As for SSM, just as the growing frequency and commonness of divorce over the past 50 years has pretty much removed the stigma of couples splitting up — as the selflessness of “let’s stay together for the sake of the kids!!” now seems quaint and old fogeyish — a new lexicon of “hey, that dude has a husband!” or “that chick has a wife!” will further change many people’s sense of the acceptable parameters around marriage.

    I was reminded of that when reading an article last year about a sect of polygamous Mormons in Utah who were being challenged by law enforcement. One of the people living in the town near the polygamists was asked about their lifestyle. She didn’t appear to be enthusiastic about it. But she also quipped something like “oh, hell, if gay marriage now is permitted, then why all the commotion over one guy having several wives?!”

    Mark (411533)

  31. Most ancient cultures allowed polygamy

    If by “thousands of years” you mean more than two thousand” then you’ve got a point. If by “thousands of years” you mean sometime in the last two thousand years” you’re wrong.

    Subotai (365578)

  32. 15.“The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbor to say there are twenty gods or no God. It neither picks my pocket nor breaks my leg.” -Thomas Jefferson
    Comment by Horatio

    Jefferson is correct in his limited examination of the idea, but maybe he didn’t appreciate the possibilities in a wider world than he was accustomed to. There may be “no injury for my neighbor to say there are twenty gods”, but if that same neighbors’ 19th god says “kill those who don’t believe”, then you will have a problem (an extreme example to make the point). Jefferson’s formulation of the issue (as expressed here, anyway) only works if you assume that religious belief, when all is said and done, has little to do with one’s behavior. Of course, as one who felt free to shape his religious convictions around what he already believed, it is consistent for him to ignore the possibility that some people actually alter behavior to line up with their beliefs (for good or ill).

    MD in Philly (ff9465)

  33. _______________________________________

    Most ancient cultures allowed polygamy and some modern current ones still do.

    Based on the nature of human sexuality — and of male sexuality in particular — polygamy actually fits the behavior (and preferences) of a wider cross section of the human race than same-sex marriage does. IOW, there are way more — far more — males who want to have access to a large number of women (certainly for sex, if not for social-legal reasons) than guys who want to be physically and socially linked to another male.

    Add to that the fact that for most male homosexuals, promiscuity is AOK (and fun!, and great!) while monogamy is ho-hum and fuddy-duddy, and same-sex marriage becomes even more of a joke. And that much more of an oddball, aberrant concept, even compared with polygamy.

    Mark (411533)

  34. it does me no injury for my neighbor to say there are twenty gods or no God. It neither picks my pocket nor breaks my leg.

    On the other hand, Jefferson certainly considered it injurious for one of his neighbors to try to get slavery outlawed by judicial fiat.

    Subotai (365578)

  35. “Well, Subtoi, perhaps you neglect your Bible. Most ancient cultures allowed polygamy…”

    Actually, for those who actually HAVE studied their Bible beyond looking at the pictures on the Sunday School leaflets, polygamy was not the norm for most ancient cultures either. Polygamy was frowned upon among the Jews (see Deut.17:17) and monogamy was considered the ideal pattern, after Adam and Eve. Polygamy in most ancient cultures was only practiced by the very wealthy (for obvious reasons).

    Gesundheit (aab7c6)

  36. Point being: although there have been many aberrations in marriage practices over the years and cultures – including polygamy, incest, and homosexuality – they were always only aberrations. That is, departures from a clearly understood standard.

    It’s only in our enlightened era that we have achieved sufficient ignorance to not know that babies come from a man and a woman and therefore the most natural pattern of a family, and marriage, is heterosexual monogamy.

    Gesundheit (aab7c6)

  37. As for SSM, just as the growing frequency and commonness of divorce over the past 50 years has pretty much removed the stigma of couples splitting up — as the selflessness of “let’s stay together for the sake of the kids!!” now seems quaint and old fogeyish — a new lexicon of “hey, that dude has a husband!” or “that chick has a wife!” will further change many people’s sense of the acceptable parameters around marriage.

    Exactly. Thanks for making the point. As the courts force more and more aberrant behaviors to be mainstream, the standards of our entire society DO change. And hey, isn’t it really fun to conduct a huge social experiment on the most foundational building block of society, the family?

    Some people are worried about what might happen when scientists mess with modifying DNA, maybe releasing some organism that will change the ecosystem. But we’re just fine with modifying the structure of our families and communities.

    If people make these choices for themselves, fine with me. But to use the power of government to define SSM as normal and culturally and legally the equal of real marriage? That’s out of bounds.

    Gesundheit (aab7c6)

  38. Well, if sookie’s understanding of the “acceptance” of homosexuality by ancient cultures is marked by his knowledge of Roman customs …

    Hint sookie: In the Roman legions of the Republic, homosexuality was punished by death. And no one who did not serve in the legions had a political career. Outside of it, there was some homosexuality but it was barely “accepted”. In fact, the most famous homosexual of Republican era, Cicero’s friend Atticus, spent most of his time in Athens because it was more accepting than Rome of his predilections. And the slogan about Julius Caesar: “Every woman’s man, every man’s woman” was not repeated by his friends.

    SPQR (26be8b)

  39. For all the geniuses who think they know history, here’s some news: in every society that’s relevant to us, even the polygamous ones, a marriage was by definition a contract between one man and one woman. In many societies a man could have several marriages going at the same time; but each one was with only one woman. A man’s wives were not married to each other, or in the same marriage, or regarded by the law as related. Each one was individually the same man’s wife; they were not all his wives together. His obligations to each were not affected by his obligations to all the others. And this is how it’s been for as long as we have records.

    Milhouse (ea66e3)

  40. Comment by Milhouse-
    Thanks for the info, that’s interesting.

    Comment by SPQR-
    I guess the Romans not only had a “don’t ask, don’t tell” policy, but a “better not tell” policy.

    MD in Philly (ff9465)

  41. MD in Philly, if I recall correctly, the punishment was that the offender’s maniple all beat the offender to death.

    SPQR (26be8b)

  42. I simply do not understand the argument that redefining marriage in no way “harms” those who hold the traditional view of the institution. Of course it does. It redefines a relationship that others have already entered into, in a manner they find not only undemocratic, but into something they find abhorrent. If the courts, were to redefine it as “slavery of the lesser party” or a “patriarchal ownership of the wife” or matriarchal ownership of the husband” or anything else that fit their fancy, would those who hold, or entered into the relationship under, the traditional view not be expected to feel themselves wronged. After all, they entered into a relationship that no longer exists. Just out of curiosity, could the Judges decision be cause for a divorce action? Wouldn’t redefining the institution make all relationships entered into under the old definition, void?

    Mike Giles (987fcc)

  43. On the issue of standing for appeal in Proposition 8 and whether or not the state could try to enforce Proposition 8, there is more.

    In Zepeda v. INS, the Ninth Circuit ruled, “A federal court may issue an injunction [only] if it has personal jurisdiction over the parties and subject matter jurisdiction over the claim; it may not attempt to determine the rights of persons not before the court.”

    For example, let us take this position to the case Term Limits Inc., which struck down Amendment 73, Section 3 of the Arkansas Constitution. The underlying injunction would only apply to the plaintiffs named in the original suit, so technically it does not apply to other potential plaintiffs, namely candidates for Congress who want to run for more turns than Amendment 73 allows, and thus it does not stop the state of Arkansas from enforcing Amendment 73 against other people running for Congress. (Of course, as a practical matter, it will not be enforced, since Arkansas knows that any attempt of enforcement would quickly result in an injunction and a summary ruling in favor of the plaintiffs. “We find in favor of the plaintiffs, see Term Limits Inc. v. Thornton, 514 U.S. 779)

    And there was another case, the Proposition 187 case, where the state dropped its appeal to the Ninth Circuit. The original court order invalidating Proposition 187 only applies to enforcement by the defendants against the named plaintiffs. The court order does not stop the state from enforcing this order against others who were not in the suit. While it is possible that state or federal courts would again issue an injunction in favor of these other potential plaintiffs (”We find in favor of the plaintiffs should they bring suit, see Plyler v. Doe, 457 U.S. 202″ ), it will create a new avenue for the state to appeal to the Ninth Circuit, if a U.S. district court made an adverse ruling, or another appeals court, if a state court had made the adverse ruling.

    Michael Ejercito (249c90)

  44. “The Constitution is what it says it is, not something bendable and pliable to match what we wish it to mean.”

    …. unless you are Judge with an agenda on your mind, in which case the constitution is like putty in your hands.

    Travis Monitor (483b36)


Powered by WordPress.

Page loaded in: 0.2839 secs.