Printer friendly version

February 19, 2004

Tyranny Is Here

In a post titled "The Law is no obstacle anymore," Donald Sensing opined that "America is one generation at most away from true tyranny." Well, the loony Left Coast is racing to prove Rev. Sensing optimistic:

The second judge told the plaintiffs that they would likely succeed on the merits eventually, but that for now, he couldn't accept their proposed court order because of a punctuation error.

It all came down to a semicolon, the judge said.

"I am not trying to be petty here, but it is a big deal. ... That semicolon is a big deal," said San Francisco Superior Court Judge James Warren.

The Proposition 22 Legal Defense and Education Fund had asked the judge to issue an order commanding the city to "cease and desist issuing marriage licenses to and/or solemnizing marriages of same-sex couples; to show cause before this court."

"The way you've written this it has a semicolon where it should have the word 'or,'" the judge told them. "I don't have the authority to issue it under these circumstances."

The law in the United States of America is now a joke to be openly flouted in the name of progressive social change. Stanley Kurtz is exactly right:

When it comes to gay marriage, affirmative action, and other hot button social issues, conservatives are used to being shut out of mainstream debate. That has sparked the growth of a whole alternative media. But I think we're seeing something new here-a new level of disregard by liberal elites for the broader public, and for the very idea of democratic debate and decision making. When state and national opinion, a recent referendum, and the plain meaning of the law, are openly disregarded by political and legal officials, the bases of civil comity are eroded in fundamental ways. Whether gay marriage is eventually nationalized or not, I think we're all going to pay a price for the way this battle is being fought. In any case, at this point, it is absurd to ask conservatives to trust in the good faith of judges. If you think anything short of an amendment can stop gay marriage, you are dreaming.

Yesterday, I questioned and argued against Jacob Levy's worries about the setting of an abstract legal precedent. At this point, that's just so much navel gazing. If that con artist of a judge Warren slips away from this with just a dour look from some government officials and a wink from others, the legal stability of this country is in serious danger. Apart from that, one thing's for sure: This movement is not about marriage.

Gabriel Rosenberg writes in the comments, linking to a different summary, that it wasn't that the judge rejected the motion because of typo, but that he couldn't grant the motion as written, only as he suggested it be written. More importantly, by setting a date for a hearing, he granted the motion as if it had been written correctly.

Readers can judge for themselves whether or not this treatment — and the six-week window of ambiguity created — is an objective application of the law. As I commented to a related post by Bryan Preston, I rather suspect that a judge would have acted more decisively, or at least more expeditiously, were the issue different. Readers can also judge for themselves whether the entire episode makes a joke of the law, nonetheless.

And in so judging, it might be enlightening to ponder the significance of these judicially created windows, both in Massachusetts and San Francisco, during which the law will be as the judges wish it to be. "Public wasting of funds" doesn't begin to describe the confusion that these moves will cause as homosexual couples seek to apply their temporarily legal status to every situation in which marriage is relevant — including the benefits and recognition offered by private entities.

Those lawsuits will be forthcoming, I'm sure.

Posted by Justin Katz at February 19, 2004 9:43 AM

Were it a petition asking to overturn California's definition of marriage as a union between a man and a woman, one rather doubts the judge would have balked over punctuation.

Posted by: ELC at February 19, 2004 10:00 AM

Actually I believe the semicolon story got blown out of proportion. The point the judge was making was that he could not order the mayor to cease-and-desit; to show cause (which was what was asked). He could only order the city to cease-and-desit or show cause. That's what he did. So the city has to either cease-and-desist handing out licenses, or it has to show up on March 29th and demonstrate to the court why they should not have to do so. This is standard. I believe the legal defense fund argued that there should be an immediate mandatory halt to the marriages, but such an action would only be done if they could demonstrate irreperable harm from the license granting. They could not do so. Their only claims of irreperable harm were assertions of public wasting of funds and future litigation. It is well established, though, that public wasting of funds is not sufficient to establish the harm needed to order a government official to immediately stop. As for the litigation I believe the court ruled that such litigation was going to occur in any event. In any case, the reports that the judge didn't grant the request because of a semicolon were premature and basically incorrect. It was not the case that if the Defense Fund had used some other punctuation they would have gotten what they wanted. It was that the judge could not grant the order unless the semicolon were replaced by an "or", and that is what he did grant. Here's the best short news report I've found so far.

Posted by: Gabriel Rosenberg at February 19, 2004 11:48 AM

Stanley Kurtz, simpleton from hell; says we are going to pay a price in the way marriage for same-sex couples is coming about in this country? Who put any laws, unjustly discriminating against citizens in constitutions to begin with? The far right is up to their deceitful wicked little agenda again, trying to have an amendment that would not only strip all rights of marriage/unions from same-sex couples in the US constitution, but would also screw around with the states' rights. Had those discriminating laws not been put in place in the first place, we wouldn't have to go thru the process of doing away with them now, would we? Bigotry is harmful anyway you look at it. In this country, it should not be there, given the diverse nature of society. It's very painful and upsetting to see fellow Americans who still believe in bigotted ideals. As far as same-sex couples go, they will continue to have long, loving relationships, raise families, whether they are allowed marriage benefits or not, although I think marriage is inevitable. It's only a matter of when it will finally be nationally accepted. Personally, I am glad that minority group is finally being accepted, and not seen as the evil people the Church tried to convince others they are. Most gays I know are extremely caring, loving people, and in many ways have much more functional loving relationships and families than many married heterosexuals. I'm glad it's finally happening for them. Thank God and praised by Christ's name. Amen.

Posted by: Don at February 20, 2004 7:27 AM


As a point of fact, nobody "put" heterosexual-only marriage laws into place. Marriage is and has always been by its nature a relationship between a representative of one half of society — men — with a representative of the other half — women. As it happens, there are various biological, psychological, and social attributes among these two halves, in general, that complement each other in beneficial ways, particularly for children.

As another point of fact, the FMA would not "strip all rights of marriage/unions from same-sex couples" and would "screw around with the states' rights" less than the national imposition of policy from a state judiciary and/or a city's radical mayor.

Posted by: Justin Katz at February 20, 2004 8:56 AM