Gay Marriage Supporters Should Not Celebrate the California Court’s Ruling

You’ve probably already heard that the California federal court has found that California’s Prop 8 gay marriage ban is unconstitutional.  Not California’s Constitution Un-Constitutional, but Federal, Constitution that applies to all of us Americans, unconstitutional.  Gay rights groups are celebrating.  But , this is not good news, regardless of how you feel about gay marriage. (For what it’s worth, I support it, both on liberatarian and socially conservative grounds.)

The ruling will be appealed, and the Ninth Circuit will certainly uphold the decision.  So this battle will really be fought in the Supreme Court.  And that is exactly the battle that gay groups have been avoiding, with good reason. 

Let’s say that same-sex marriage supporters suffer a loss at the Supreme Court.  That’s huge.  SCOTUS only takes a few cases a year; it will likely be decades before they may be willing to take such a decision back, if not generations.  Having such a devastating loss from the highest court in the land will gird opponents and inspire revisits, and perhaps reversals, of the pro-gay marriage decisions that have been made up to now. 

On the state level, gay marriage supporters have made incredible strides in a very short time.  Gay marriage has been, and can continue to be, growing in acceptance, and people are becoming more comfortable with it.  A renouncement from the highest court in the land will be a devastating blow, and may stop that progress in its tracks.  Gay marriage opponents, which, it is important to remember, still constitute a majority of Americans, who may have lost interest or given up will be reminded of their opposition, and will take up arms again. 

On the other hand, let’s say that the Supreme Court upholds the California court’s decision.  A win for gay marriage across the country?  Perhaps.  Four years ago, I would have said that, should SCOTUS find such a right, we would expect a Constitutional amendment within days.  Things have changed in that regards, and opponents of such an amendment would have a much stronger case.  Stronger, but far from airtight.

If there is an amendment against gay marriage, it sets an alarming precedent.  It is not the place of the U.S. Constitution to set rules about popular social issues, and we should not start making it so.  Attitudes are changing; it does no good to set into stone a rule based on attitudes that may change in a matter of years.  As above, having a Constitutional Amendment, even one that gives states the right to make the decision, would reinvigorate opponents and gay marriage supporters would likely lose a great deal of the traction that they have gained in the past few years.  In our nation’s history, we have only overturned one Constitutional Amendment, so restrictions on gay marriage would be likely to last much longer than it would if it had been allowed to win support on its own.  It is simply not worth this risk. 

Even if such an amendment does not happen, the mere spectacle of a Supreme Court case and the national debate over an amendment will be a massive distraction from the important issues facing our country. Regardless of the Supreme Court’s decision, it will almost certainly be a 5-4 split, which will mean that opponents will have every reason to question its validity.  Whether we like it or not, people care about this issue, and it is bound to bring up passionate debate and public interest.  Normally, debate and public interest are a good thing; however, our nation is now facing serious issues about the nature and role of government.  Like many of my fellow libertarian leaning Americans, I have been overjoyed at the new attention that this debate has brough to the public, and revel in the sudden attention that regular people now pay towards the government’s actions.  Distraction, in the form of a nationwide gay marriage debate, will allow government to grow, unchecked, while the people who would keep it in check debate an issue that in no way affects their livelihood and our country’s economic future.  We do not need to debate social issues right now; we need to keep the focus on the government.  A debate on gay marriage will not help that focus, and it will hurt our country.

I admit that I kind of appreciate DOMA as a compromise . . .

But I’ve always thought that it was probably unconsitutional, so I can’t disagree with this ruling at first glance.  I’ll try to read it more and see if that changes later.  Love, love, love that we’re talking about the 10th Amendment, though.

Bork thinks Kagan Should Be Borked

bork /bɔrk/ [bawrk] –verb (used with object)

to attack (a candidate or public figure) systematically, esp. in the media. Origin: 1988, Americanism ; after Judge Robert H. Bork,  whose appointment to the Supreme Court was blocked in 1987 after an extensive media campaign by his opponents

Well I guess it’s only fair.  (via Ann Althouse)  That being said, I think Kagan is weak and inexperienced enough that she will be the best thing possible for conservatives and lovers of the Constitution in an Obama administration.  He says that he wants a consensus builder on the court; there is no indication at all that Kagan is that person.  She’s been nice to conservatives in the past (well, not that nice); I expect that she won’t be a stubborn voice that changes minds in the future.  She’s no liberal Scalia, and it’s a fantasy to think otherwise.  But she’s clearly smart and capable, and I expect her to do well on the issues that don’t involve political or constitutional questions.  So, she gets confirmed = we win. 

That said, I’d like for them to make it a little rough on her.  I’d like to see the confirmation hearings turn into a referendum on the Constitution.  And a referendum on its limits.  In particular, I’d like for her to strongly, unequivocally define what she believes to be the limits of the Commerce Clause.  Because there is simply no good answer that shows that there are limits, yet supports a liberal agenda.  We need that on record.  And then, in 2012, we need to be sure to remind people that, in an Obama world, the Constitution sets no limits, and is meaningless.

Update: Kagan says that the Bork hearings were “great,” “educational” and “the best thing that ever happened to Constitutional Democracy.”  (via Instapundit)  Hope she still believes that.

Old People

are awesome. 

An 80-year-old Chicago man shot and killed an armed man who broke into his two-story house in a pre-dawn home invasion Wednesday on the city’s West Side.

At about 5:20 a.m., the homeowner and his wife, also in her 80s, discovered the intruder entering their home through a back door. The homeowner, who had a gun, confronted and killed the burglar on the doorstep, police said. Cops said the intruder also fired his gun during the struggle.

“It’s a good thing they had a gun, or they might be dead,” said Curtis Thompson, who lives next door to the couple, the Chicago Sun-Times reported.

Neighbors described the elderly couple, who both walk with canes, as pillars of the community in Garfield Park, where home invasions have been all too frequent.

Their neighbor, Shaquite Johnson, told MyFoxChicago that the two are “heroes” for fighting off the attacker — and that the shooting means there is “one less criminal” walking the streets.
“They don’t bother no one, so why would anyone do that to them?” she said.

One problem.  This old man, by owning the very gun that he used to protect his wife and home, may have violated Chicago’s handgun ban.  Keep your eyes on the Supreme Court for a decision on McDonald v. Chicago.

In what kind of world is this an excuse?

Hot Air (via Instapundit), in discussing Attorney General Eric Holder’s admission that he has not read the Arizona law that he is claiming may warrant a constitutional challenge, asks the following:

 Here’s the money question, prompted not just by Holder’s ignorance but the fact that Hillary criticized the statute without having read it either: Are they deliberately not reading it so that they have an excuse to walk back their criticisms later if this gets too hot politically?

So, I ask in response: The bill is 18 pages long.  This man is the attorney general of the United States; he is our highest ranked legal authority.  Hillary Clinton, while not serving in a law based position, is also a trained attorney.  Will the public really accept “I didn’t read the bill before I criticized it” as any sort of excuse whatsoever?  Really? 

My town has been in the mist of a very controversial criminal trial which included frequent complaints that the defendant was getting a raw deal.  One of my friends, who is not an attorney, asked me what my thoughts were on it.  I answered her, but made sure to state very clearly that I was only basing my opinion on what had been offered in some of the main media outlets, and that I had not examined the evidence or studied the proceedings unfiltered.  I specifically said that my answer was only applicable if the coverage I was reading was accurate and complete. 

Now, I don’t get paid to answer legal questions to facebook friends, and she was in no way relying on my answer other than to satisfy her own curiosity, so I can do that without all of the facts.  But, even so, I am an attorney, and she asked me because of my experience; I felt that I owed it to her to answer with the caveats or to give a completely informed answer.  Attorney General Holder owes us a lot more, and he is not following through.

Related: NRO is also outraged, calling this “the most transparently irresponsible administration in history.”

Looking for Hate in All the Wrong Places, Part II: A Walk in the Park

(Note: Part one of this piece is here)

     

Here’s what I didn’t see at the Chattanooga Tax Day Tea Party.  I didn’t see a single person questioning the president’s birth certificate.  Although I went deliberately looking for it, I saw absolutely nothing that indicated or implied violence. I not only saw no racism, I saw no references to the president’s race whatsoever.  There were no depictions of the president as The Joker (although I’m still unclear about why that’s offensive), a monkey, Hitler, or a witch doctor.  I neither saw nor heard any hint of vulgarity, save for one speaker who mentioned that the group has been called “teabaggers.”  I didn’t even see a confederate flag, and, in this area, it’s hard to drive down the interstate without seeing one of those.    

No one made threats (besides those of retribution at the voting booth), no one threw eggs, no one was arrested.  Beyond any doubt, no one crashed this Tea Party.  The most hateful sign I saw was one carried by a 12-13 year old boy, a quickly made creation of poster board and a black marker, which stated “Keith O. is the worst person in the world.”  (Just in case you’re not one of the approximately 6 people who watch Keith Olbermann’s show, he does a regular segment naming someone he disagrees with as “the worst person in the world.”  That is, he does this when he’s not giggling like a schoolgirl that people he disagrees with are transgendered or deserve to be called misogynistic names.) On the whole, it was like any other springtime event in the park.  The crowd was mostly elderly folks or families with young children; they sat in camping chairs or on blankets, some with umbrellas to hide from the hot sun.  Children and adults played Frisbee or tossed footballs, kids cooled off in the nearby fountain.  The perimeter was dotted with booths: vendors sold buttons and tee-shirts, local restaurants supplied food and drinks, candidates for office sold themselves.     

 

 

 

A few folks were on the kooky side, no doubt.  One man wandered around in a Captain America Halloween costume, complete with lumpy muscles, holding a sign which stated “Cut Spending Immensely Demons of Congress.”  Another, dressed as Jesus, if Jesus had been known to wear a dirty bathrobe with a leather belt and Birkenstocks, held a sign that read “Jesus: Libertarian.”  A man dressed in motorcycle leather, representing the Constitutional Defenders, preached some rather dubious tales of alleged liberty violations to all who would listen.  A group of several elderly mall-walkers held a sign proclaiming “Don’t Tax Me, Bro!”     

 

Jesus + Captain America= Awesome!

 Although we had no crashers, we did have a tenacious group of counter-protesters.  Well, “group” might be too strong a word; a college-aged hipster and a middle aged woman waved signs that said “Tax the Rich” and “Troops Home Now,” while another young man or two meandered about nearby, apparently too shy (and by shy, I mean embarrassed) to join in.  These folks were periodically confronted by elderly men, clearly veterans, who asked them if they had served, pointed out that they have worked for what they have, and otherwise told them what’s what.  The oldsters supported their right to speak, though, and no hard feelings seemed to follow.     

Even while disagreeing, they still got along

   

We didn't have crashers, but folks were certainly ready for them Even while disagreeing, they still got along

   

Counter-Protesters- Cute!

   

The event was unbelievably well-run.  Numerous volunteers, many in tee-shirts that read “Tyranny Response Team,” wandered the crowd.  They forbid politicians from politicking away from their booths, handed out booklets containing the Declaration of Independence and Constitution like they were Gideon New Testaments, and warned against yelling when the conversation between the counter-protesters and vets got louder to avoid being drowned out by the din.      

The speakers were mostly ho-hum local media folks.  The winner of an essay contest read his piece, someone spoke on the Second Amendment, another on the Fair Tax, another on liberty.  A ladies choir sang.  The crowd was so polite that I often felt bad about walking around to take pictures or updating my Twitter feed during the speeches.  The announcer warned us to respect the children and families by keeping our signs and comments polite and not to engage any crashers, but, in this crowd, there was clearly no need for concern. One the whole, the event was incredibly nice.  It was not a bit like the protests of my beloved sixties depictions, and it was nothing at all like the hate filled images that anti-tea partiers would like for you to believe.  It was, I dare to say, even a little bit boring.  More like a fair than a rally, more like a local park event than a protest.  I’d take kids to it in a heartbeat.  Heck, I wouldn’t take my grandparents, because they would come off too rowdy and vulgar.  (To be fair, they are Italian).  I went looking for bad behavior; I found absolutely none at all.    UPDATE: This piece is published in NewsBlaze here.  If you’re wondering where the right place is to look for hate, look no further than the French Quarter following a fundraiser for LA republican Governor Bobby Jindal, where a young volunteer and her boyfriend were savagely beaten in an attack that was apparently politically motivated.  I’m sure ABC, NBC, CNN, and Bill Clinton will be right on it.  I’m sure that all of the Dems in Congress are going to condemn it, just as soon as they get around to it . . .

I can be neither with you nor against you

I’m intrigued by this Ann Althouse post that discusses a move to prosecute a number of pretty horrible high school bullies whose harassment may have led the bullied teen to take her own life.  While Althouse raises some great questions that must be considered, I’m mostly caught up by the comments, which quickly descend into an argument on “who’s side do you want to take.”  One commenter in particular constantly insists that he is “siding” with the girl who was bullied, in insisting that the other students should be prosecuted, and several commenters deride Althouse for even asking questions about what actual crime has been committed and what the practical implications of prosecution may be on other cases. 

 

In other words, for many, it’s not about what happened or what should happen, it’s about who was more deserving of your sympathies. 

 

Which brings me to this Silent Majority post on the ongoing case involving a fallen marine’s family’s suit against the dreadful Phelps Group for picketing his funeral.  The case was appealed to the 4th Circuit, which determined that the Phelps group, as distasteful as their message may be, are still entitled to their free speech rights, and a suit against them cannot stand.  As is often the case when a party loses a motion or appeal, the court ruled that the unsuccessful party, in this case the family, must pay the court costs.  (Note: this is different than paying all of the legal fees associated with the litigation, such as attorneys’ fees.  This only encompasses the fees required to bring the suit before  the court.) 

 

Southern man writes:

 This is a miscarriage of justice. The man lost his son in defense of this country and his reward was a group of degenerate reprobates celebrating his son’s death at the funeral. Seeking justice he filed suit and was again rewarded by being ordered to pay the legal fees for this group of morons. Justice is supposed to be blind not stupid. I would implore anyone with the means to donate to this cause.

 Unfortunately, here, the writer is demanding that justice be the exact opposite of blind.  He is asking that the court dismiss this most fundamental American ideal of freedom of speech, and instead choose the side of the party that deserves sympathy, the fallen solider’s family. 

 

I have nothing but the deepest sympathies for this family, and the greatest of admiration for their heroic lost son.  I don’t blame them for filing this suit; I understand why they did so.  The Phelps group are horrible, horrible people who do horrible things, and I cannot blame them for letting their grief and outrage trump their respect for freedom.  But, ultimately, the court must respect the freedom of all people, including those with whom we strongly disagree. 

 

Perhaps it helps to imagine it in different terms.  Let us say that you wrote a blog post, or a letter to the editor if you’re more comfortable with that, which harshly criticized a dead political figure.  Let us say that the family of that figure, outraged that you would demean their dearly departed, filed suit for their emotional pain from your critiques.  Their suit is dismissed, of course, on the grounds that you had and have freedom to state what you wish, even if it is harsh or unpleasant.  Especially if it is harsh or unpleasant.  The court costs must be paid.  Who should pay them?  Unless you chose to represent yourself, you have already been required to pay for an attorney to protect your rights, and you have certainly expended considerable time, energy, and stress over this case.  Should you, who were brough to court against your will, for a charge that was bogus, be required to pay the court costs?  I think not. 

 

Here, perpetrator may be different, the case is not.  The Phelps group, as disgusting as their message is, has a right to speak their peace.  We have a right to criticize them harshly for it.  Conservatives are fond of responding to complaints based on over-zealous political correctness with the admonition that there is no right to not be offended.  This remains just as true when the offense is real, and the offendee is wholly deserving of our sympathies. 

 

I side with Freedom, whoever’s side she winds up on. 

“We’re not even dealing with any constitutionality here.”

CNS news collects Democrats’ opinions on why they believe that the healthcare proposals are Constitutional. 

The general consensus: something along the lines of “Why should the constitution matter to things that the government does?”

I don’t know what this means, but it troubles me.

The present White House has a tendancy to shoot from the hip, so I’m hoping that this is just some flunkie’s idea of  strong sounding phrase that doesn’t have any real meaning or intent behind it.  Yet, the more I think about it, the more it troubles me, and I’d like to remember that it was there in case of future reference. 

The White House’s official response to this week’s Supreme Court decision upholding free speech rights in Citizens United (Via Ann Althouse):

With its ruling today, the Supreme Court has given a green light to a new stampede of special interest money in our politics. It is a major victory for big oil, Wall Street banks, health insurance companies and the other powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans. This ruling gives the special interests and their lobbyists even more power in Washington–while undermining the influence of average Americans who make small contributions to support their preferred candidates. That’s why I am instructing my Administration to get to work immediately with Congress on this issue. We are going to talk with bipartisan Congressional leaders to develop a forceful response to this decision. The public interest requires nothing less.

(bolding mine) The Supreme Court’s decision was on constitutional grounds.  It ruled that the law which forbid distribution of a movie is invalid, under the constitution.  The president has no power to change that.  The congress has no power to change that.  The constitution says what it says. 

What, exactly, is Obama proposing to do here?

Added: Really good description of the issues at play in this case here.

You don’t have the right to own a telephone

From The Other McCain, Senator Mark Warner, making no sense at all:

But one thing, listen, there is,
there is no place in the Constitution that specifically says health care.
There’s no place in the Constitution that specifically says education.
There is no place in the competition, in the Constitution,
there is no place in the Constitution,
there is no place in the Constitution,
there is no place in the Constitution,
there is no place in the Constitution
that talks about you ought to have the right to get a telephone, but we have made those choices as a country over the years.

I would really like to see the Senator Warner’s citation to the law, statute, court finding, etc. that suggests that you have a right to own a telephone.  What does that even mean?  I’m certainly not familiar with any rulings that say that, if you do not have a telephone, you have a right to have someone else provide one for you.  (Sure, some local gov’ts have decided to do so, for safety reasons I suppose, but there is no right to it). 

But, perhaps he means that you have a right to own one, in that the gov’t can’t take it away.  Well, the gov’t can’t take away a phone that you already have, at least not without providing you with just compensation, but there is no reason that Congress, with its almost unlimited commerce power, can’t prevent phones from being sold.  They just wouldn’t- that’s why we have elected officials that have to answer to us every now and again- so they don’t do stupid things that serve no purpose and we would hate. (Hahaha!  I really just said that, didn’t I?)