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.

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“We don’t leave our First Amendment rights in the hands of FCC bureaucrats”

Although I support Elena Kagan’s confirmation on the grounds that it is certainly the best that we could hope for from an Obama presidency, stuff like this really concerns me.  Please listen to the audio at the link.  The quote comes from Justice Alito.  When General Kagan was questioned about infringements on speech and banning books, her response is that the government’s never actually applied it to books, as if that somehow makes the ability to ban them OK.  If the framers of the Constitution had thought “just trust the government” were a good strategy, I don’t think they would have bothered with the First Amendment at all. 

In today’s hearing, she attempted to make the argument that books were somehow different from movies, something about traditional electioneering methods.  It still doesn’t work.  How about we just don’t ban any speech at all?

What part of “Congress shall make no law . . . abridging the freedom of speech” doesn’t work for her?

Bork thinks Kagan Should Be Borked

bork[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. 

Kagan Confirm

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.

See, why do people have to put these things into my head

I know that this will never happen, but now, I want it to.  A couple of Above the Law writers are advocating Clarence Thomas for president. 

The Republican Party is in disarray, with no clear message — as shown in last week’s primaries — and with no obvious candidate to challenge President Obama in 2012. Thomas could be the GOP’s new standard-bearer. He has enviable name recognition, both as a long-serving justice and as the author of the bestselling 2007 autobiography “My Grandfather’s Son.” And he has already survived the nasty political attacks that marked his 1991 confirmation hearings.

A Thomas candidacy would bring racial diversity and a moving personal story to the Republican ticket. Thomas was born into poverty in Pin Point, Ga. He didn’t have indoor plumbing until he moved to Savannah to live with his grandparents at age 7.

“[My grandfather] told us that if we learned how to work, we would be able to live as well as he and Aunt Tina did when we grew up,” Thomas wrote in his memoir. “. . . Our first task was to get a good education, so that we could hold down a ‘coat-and-tie-job,’ and he wouldn’t listen to any excuses for failure.” Through hard work and a dedication to education, including degrees from Holy Cross College and Yale Law School, Thomas became a distinguished lawyer and public servant.

Thomas is well suited for political office. On the nation’s highest court, he has had to reflect and rule on the country’s most divisive issues. He also has political experience predating the court. He worked as an assistant attorney general in Missouri and then for the Reagan administration in the Department of Education and as head of the EEOC.

I’d be terrible if he risked it and lost (although, as Glenn Reynolds points out– who says he has to step down to run?)- we just couldn’t allow Obama to appoint his replacement.  And he would lose- as I’ve said before, as a minority who isn’t liberal, he represents something that the liberals know they must destroy.   But, oh! the justices that a president Thomas would appoint. 

Ilya Somin doesn’t think it’s a good idea for mostly the same reasons I don’t. (No real discussion of how he would actually be as president, though).

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.

Supreme Court Justices are Just Like Us

Well, Justice Ginsburg does something that I do a lot, at least: (via 2parse)

I think back to the days when — I don’t know who it was — when I think Truman suggested the possibility of a woman as a justice. Someone said we have these conferences and men are talking to men and sometimes we loosen our ties, sometimes even take off our shoes. The notion was that they would be inhibited from doing that if women were around. I don’t know how many times I’ve kicked off my shoes. Including the time some reporter said something like, it took me a long time to get up from the bench. They worried, was I frail? To be truthful I had kicked off my shoes, and I couldn’t find my right shoe; it traveled way underneath

Since Justice Ginsburg is older than my grandmother, I guess I’m not likely to be thought of as frail for this, just weird.

Who is in charge of the White House here?

Slate’s John Dickerson has a good article questioning Obama’s assertions that Supreme Court nominee Elena Kagan has a “special understanding of ordinary people” given her extraordinary background.  I have no real critiques of the thesis, but this paragraph really jumped out at me:

The talking points the White House sent to their elite supporters also cite Kagan’s Harvard Law Review article “Presidential Administration” as proof that she understands how the law affects people’s lives. It was honored as the year’s top scholarly article by the American Bar Association‘s Section on Administrative Law and Regulatory Practice. After reading some of the article, which addresses the structure of the White House, I asked for some clarification about how that article addressed issues related to regular Americans. A White House aide suggested I Google the host of legal experts who had said so. (I did. I couldn’t find them.)

So, let’s get this straight.  The White House puts out as talking points a justification that is, on its face, makes absolutely no sense.  When questioned about it, the White House gives a brush off response that is barely a step above linking to justf*****ggoogleit.com, and even that response was, as it turns out, completely made up. 

These are our leaders?