Printer friendly version

July 19, 2004

A One-Principle Morality

Too many points beg reply among the record-setting (for this blog) sixty-two comments to this post from last week for me to incorporate them into a single entry, so I'll address them discretely as I'm able throughout the evening and, if necessary, into tomorrow. With this first, although in response to a relatively late comment, I'd like to address an all-too-common misunderstanding of the way in which our government works.

Exhibiting the tendency of those who hold certain views to declare a radical libertarian opinion about the governmental ideal to be the system that we currently inhabit, Bill Ware writes the following:

Our nation was founded on the basis of life, liberty, and the pursuit of happiness. The government is only empowered to restrict our liberties to the extent our actions harm (take away the liberties of) others. When Judge Kennedy says that the Supreme Court cannot base it's decisions on traditional (religious) morality, this doesn't mean that all our morale principles are cast aside, that anything goes. All our laws based on civil morality remain in full effect. Laws based on religious beliefs that have no civil justification are unconstitutional.

As a summary of American representative democracy, Bill's schema of "religious morality" versus "civil morality" is incorrect at just about every level. To begin with, the sole principle that Bill ascribes to "civil morality" is that only actions that "harm our citizens" are legitimate targets of the law. Furthermore, Bill makes absolutely no distinctions between the various branches of government.

The first problem that arises out of these two factors — concisely describing exactly the loose rigging that threatens to knock our civil ship off course — is that very few actions are so simple as to fall easily into a straightforward harm/benefit model, and the elite, unaccountable judiciary is a poor mechanism to make the call. This is true even with issues that allow a reasonably clear picture of direct harm, such as that at hand, same-sex marriage.

We've all heard, ad nauseum, the rhetorical trope, "how does it affect your marriage if two guys tie the knot." But those who oppose the innovation are concerned about a different kind of harm — a social one that mightn't affect individuals until long after the barrier has been leveled. A country with future-visibility of the current generation will quickly find itself lost at sea, and the central complaint about the judiciary's power grabs has been its adherence to such whims.

It's become more than a little frustrating to have to explain such fundamental principles of our government, but it must be stated as often as necessary that our system is not so simple, and that the judiciary is not so powerfully endowed. Except in the reckless regime that Bill's ideological company would insert, it just is not true that the "government" is only empowered to regulate against harm, as defined by secularists. It is also not true that judges are charged with assessing harm and conforming the law to its avoidance.

Self-government means nothing if citizens cannot decide the appropriate bases by which to govern themselves and each other. Unless they conflict with explicit boundaries imposed at a higher level of government, referenda and legislation can do anything, for any reason, that the voters support. Unfortunately, for practical purposes, the judiciary has made itself the last stop for imposition from above, leaving the other branches less and less option than to legislate through Constitutional Amendment.

So, suppose the United States Congress were to pass, and the states were to ratify, a Constitutional Amendment granting the right to define marriage to each state. In that case, a state could define marriage as between a man and a woman, and the law would plainly not be unconstitutional. This would be true despite Bill's theory about harm and "civil morality." If it has any meaning, "civil morality" simply indicates those moral ideals that we all have in common — as proven through democratic political expression — within the civil sphere.

To the extent that I agree with Justice Kennedy, as Bill paraphrases him, it is on the point that the Supreme Court cannot base its decisions on traditional morality when the law requires conflicting action. It must, under those circumstances, refer litigants to the branch of government involving those people who acquire their positions through these things we call "campaigns" and "elections." The problem, rapidly advancing toward calamity, is that judges haven't been so neutrally disposed toward untraditional morality.

Perhaps it will take the judiciary's ruling in ways that finally breach the limits of such folks as Bill for those citizens to realize that they've been asserting theory as practice only because the theory better facilitates their preferences. Somebody coined an applicable phrase for this phenomenon, but so as not to run afoul of the rhetorical morality of Godwin's Law, I'll leave it unstated.

Posted by Justin Katz at July 19, 2004 7:49 PM
Government
Comments

I think the gentleman you quoted misstates Justice Kennedy's position. Writing for the Court in Romer, I believe (I'm going from memory here) that he disallows any ethic that "transcends human invention," which excludes not only that religious morality but any "civil morality" that claims to be objective. Morality has to be on this account something plastic.

Posted by: Ramesh Ponnuru at July 19, 2004 10:35 PM

Thanks for the post, Justin. This is where I was trying to go with my list of questions directed to Bill, but as usual you got there in a more direct and concise manner.

Posted by: Mike S. at July 20, 2004 10:14 AM

"Too many points beg reply among the record-setting (for this blog) sixty-two comments to this post ..."
—--- I know it is simplistic of me to take any credit for the record-setting since it is YOUR blog. But I can't help it.

"As a summary of American representative democracy, Bill's schema of "religious morality" versus "civil morality" is incorrect at just about every level. To begin with, the sole principle that Bill ascribes to "civil morality" is that only actions that don't "harm our citizens" are legitimate targets of the law."
—---- Yes, as a libertarian, Bill does believe that only actions that cause direct harm should be the targets of the law. His point was targeted to the opposition to gay marriage based on the sole principle of 'religious morality'. That is a major issue in this debate.


"The first problem that arises out of these two factors - concisely describing exactly the loose rigging that threatens to knock our civil ship off course - is that very few actions are so simple as to fall easily into a straightforward harm/benefit model, and the elite, unaccountable judiciary is a poor mechanism to make the call."
—--- I agree that it is not near as simple as a straightforward harm/benefit model. But what exactly do you mean by the "elite, unaccountable judiciary" ? Sounds to me as if you are referring to anyone who supports SSM - except for those elites and judges who oppose SSM.

This is true even with issues that allow a reasonably clear picture of direct harm, such as that at hand, same-sex marriage.
—--- One of the things we are debating is whether there is a "clear picture of direct harm" by legitimizing gay relationships.

We've all heard, ad nauseum, the rhetorical trope, "how does it affect your marriage if two guys tie the knot." But those who oppose the innovation are concerned about a different kind of harm - a social one that mightn't affect individuals until long after the barrier has been leveled. A country with future-visibility of the current generation will quickly find itself lost at sea
—--- Speaking of rhetorical trope ... "lost at sea" ?

"... and the central complaint about the judiciary's power grabs has been its adherence to such whims."
—--- This is the most disingenuous of all arguments on this issue. How will you respond to those who claim the exact same thing when legal abortion is overturned or affirmative action is outlawed ?

Except in the reckless regime that Bill's ideological company would insert, it just is not true that the "government" is only empowered to regulate against harm, as defined by secularists. It is also not true that judges are charged with assessing harm and conforming the law to its avoidance.
—--- I agree with everything in this above paragraph. That my be how Bill wants it to be, as someone with a libertarian ideology. But that is not how it currently is.

Self-government means nothing if citizens cannot decide the appropriate bases by which to govern themselves and each other. Unless they conflict with explicit boundaries imposed at a higher level of government, referenda and legislation can do anything, for any reason, that the voters support.
—---- Based on this, what, in your view, is the value of having Constitutions at the State or Federal level ? Sounds to me if you had your way, there would be no such thing as 'unconstitutional'.

Unfortunately, for practical purposes, the judiciary has made itself the last stop for imposition from above, leaving the other branches less and less option than to legislate through Constitutional Amendment.
—---- The judiciary IS THE LAST STOP. Do you think it should be otherwise ?

So, suppose the United States Congress were to pass, and the states were to ratify, a Constitutional Amendment granting the right to define marriage to each state. In that case, a state could define marriage as between a man and a woman, and the law would plainly not be unconstitutional. This would be true despite Bill's theory about harm and "civil morality." If it has any meaning, "civil morality" simply indicates those moral ideals that we all have in common - as proven through democratic political expression - within the civil sphere.
—---- I agree that 'civil morality' really has no meaning and is what you said above. But I would also apply that same logic to phrases such as 'family values' or 'religious morality' or even just 'morality'.

To the extent that I agree with Justice Kennedy, as Bill paraphrases him, it is on the point that the Supreme Court cannot base its decisions on traditional morality when the law requires conflicting action. It must, under those circumstances, refer litigants to the branch of government involving those people who acquire their positions through these things we call "campaigns" and "elections."
—--- In case I don't understand what you mean, is what you are saying is that the courts should not rule on issues such as this, that they should be determined at the legislative level ? Or, in other words, legislators can make any law they want. Is that right ? Let me ask, what would be examples of cases that you feel the Supreme Court should have jurisdiction ?

The problem, rapidly advancing toward calamity, is that judges haven't been so neutrally disposed toward untraditional morality.
—---- Let me .... never mind. We've already done this.

Perhaps it will take the judiciary's ruling in ways that finally breach the limits of such folks as Bill for those citizens to realize that they've been asserting theory as practice only because the theory better facilitates their preferences.
—---- I can certainly foresee SCOTUS decisions where you will be supportive of the decision yet it does meet the preferences of the 'elites'.

Somebody coined an applicable phrase for this phenomenon, but so as not to run afoul of the rhetorical morality of Godwin's Law, I'll leave it unstated.
—-- Godwin's Law is so true. But I happen to think there are a number of other words/phrases you could exchange for 'Nazi' that would still make the law applicable.

Posted by: Mark Miller at July 20, 2004 1:07 PM

Justin, Wow, I've never been called a libertarian before, let alone a radical one. I guess that makes Thomas Jefferson one too! Thanks for the compliment.

"To begin with, the sole principle that Bill ascribes to "civil morality" is that only actions that don't "harm our citizens" are legitimate targets of the law." Don't we mean "do harm our citizens" not don't? I did. We use criminal penalties to discourage people from harming others. We don't criminalize activities that cause no harm to others, like opening one's business on Sunday.

"very few actions are so simple as to fall easily into a straightforward harm/benefit model, " Well, Justin, I couldn't agree with you more. Welfare (AFDC) was instigated as a response to the devastation that occurred in coal mining towns in West Virginia and elsewhere when a single accident wiped out many of the breadwinners in these communities leaving destitute wives and young children behind. As a fiscal conservative, I believe that people should look after their own needs, except in emergencies, of course. Despite it's good intentions, welfare grew into a program that fostered dependency, discouraged marriage and resulted in millions of children being raised in poor, one parent families. I'm no liberal. I'm all for welfare reform and more of it to reverse these trends.

So I, too, am leery of any social change like same sex marriage and am willing to be informed of potential "unexpected consequences." You take the harmful effects as a given, yet I'm not aware of specifics. About all I hear is how those who oppose SSM don't want their children exposed to the "homosexual life-style" or variations on that theme. This just says to me that you wish to be free to pass the same prejudices you have about gays on to your children. That's not a valid argument as far as I'm concerned.

A fellow graduate of mine at the Air Force Academy is gay. We went on to serve as pilots during the Vietnam era. He deserves the same repect for his service to our country as all veterans do. He doesn't deserve to be laughed at or called names for his effiminate manorisms by unruly children who learned to be prejudice against gays from their parents. Is that too much to ask, Justin?

Posted by: Bill Ware at July 20, 2004 1:23 PM

Mark,

I'm getting the sense that you approach my posts with the intention to disagree...

His point was targeted to the opposition to gay marriage based on the sole principle of 'religious morality'.

I think you've mitigated Bill's post significantly, here. He was much more assertive than you give him credit for.

But what exactly do you mean by the "elite, unaccountable judiciary" ?

All judges are elites; it's almost definitional. And, in comparison with the other branches, they are largely unaccountable. The phrase was meant as a description of the entire branch, not any particular twigs on it.

One of the things we are debating is whether there is a "clear picture of direct harm" by legitimizing gay relationships.

I thought that, through subsequent context, I'd made it apparent that the "clear picture of direct harm" is that there isn't any (direct meaning that Person A's actions, specifically, harm Person B). Hence the trope.

This is the most disingenuous of all arguments on this issue. How will you respond to those who claim the exact same thing when legal abortion is overturned or affirmative action is outlawed ?

Frankly, I think your "when" is a bit more disingenuous than my statement. What country's courts are you talking about? Regarding abortion, my expectation for the policy to change is that either (1) the Supreme Court will recognize that "abortion" is nowhere mentioned in the Constitution and the matter will go back to legislatures or (2) legislatures will, in some degree and via some mechanism, remove the issue from the judges' reach. As for affirmative action, the courts need only recognize that the Constitution guarantees freedom from racial discrimination.

If you wish to attack me with relativism, there's little I can do but shake my head and continue to insist that the fact that certain decisions are whims does not make the opposite decisions the same.

Sounds to me if you had your way, there would be no such thing as 'unconstitutional'.

For what reason do you suppose I included the phrase "unless they conflict with explicit boundaries imposed at a higher level of government"? Other than refering you back to the sentence, I've no idea how to address your response.

The judiciary IS THE LAST STOP. Do you think it should be otherwise ?

The judiciary OUGHTN'T BE the last stop for imposition. It ought to be the last stop to confirm that laws passed through legislation impose such boundaries.

In case I don't understand what you mean, is what you are saying is that the courts should not rule on issues such as this, that they should be determined at the legislative level ?

I was merely saying that courts cannot rely (rather, should stop relying) on some external source of moral guidance to rule in contravention of the laws as they exist. Excluded, for example, would be judgements saying, in effect, "Hey, look at this! Apparently, same-sex marriage has been legal all along, and nobody realized it."

But I happen to think there are a number of other words/phrases you could exchange for 'Nazi' that would still make the law applicable.

Actually, I meant to indicate that famous saying (for which I'm too busy to look up the reference) about "first they came for..."

Posted by: Justin Katz at July 20, 2004 1:38 PM

"... and the central complaint about the judiciary's power grabs has been its adherence to such whims."
—--- This is the most disingenuous of all arguments on this issue. How will you respond to those who claim the exact same thing when legal abortion is overturned or affirmative action is outlawed ?

Mark, I believe you are missing the point here. Justin's complaint is that the judiciary, along with large segments of our society, has adopted a viewpoint that says that what individuals (usually adults) need or want right now is of paramount importance, and consideration of historical and traditional precedents, as well as a long-term view of what is best for society as a whole, has been subsumed to the imperative of the present. And Bill's argument is essentially that if there's no immediate, direct harm to some identifiable individual, then the government has no right to ban it. Viz.,

"Homosexual marriage, by contrast, is civilly moral since society is not harmed by it and it enhances the lives of the two people directly involved, their family and friends. How can one see the happy faces at these weddings and not realize that this is a good thing?"

He is assuming that there is no immediate, direct harm to society. And he throws in the emotional appeal to 'happy faces'. One of the points those of us opposed to SSM are trying to make is not that calling SSM the same as traditional marriage will instantaneously collapse the institution - it is that it will lead to changes in attitude, i.e. cultural changes, that will greatly weaken the institution. But SSM advocates simply say "I don't see the harm" and "look at those happy faces". And the courts tend to take the same position.

I'm not sure what you were getting at with your allusions to abortion and affirmative action, but I think it's obvious that these fall into the same framework: in abortion, the immediate needs of the mother take precedence over the future represented by her child, so much so that the child's life is extinguished. In affirmative action, the immediate need to atone for past misdeeds of slavery and Jim Crow led to the 'instant gratification' of promoting blacks despite their lower qualifications than other applicants, and disfavoring the longer-term goal of encouraging/allowing blacks to take responsibility for their own education/employment/etc.

Posted by: Mike S. at July 20, 2004 1:51 PM

"He deserves the same repect for his service to our country as all veterans do. He doesn't deserve to be laughed at or called names for his effiminate manorisms by unruly children who learned to be prejudice against gays from their parents. Is that too much to ask, Justin?"

What does this have to do with SSM, and the judicial imposition of same?

"About all I hear is how those who oppose SSM don't want their children exposed to the "homosexual life-style" or variations on that theme."

First of all, that means you are not paying attention, and second of all, it's not that people don't want their kids 'exposed' to it, it's that they don't want their kids taught in schools that it is morally equivalent to traditional marriage. There are already signs of this happening in Canada and Sweden, where it's becoming illegal to even preach in the pulpit that homosexual behavior is immoral.

Posted by: Mike S. at July 20, 2004 1:56 PM

"About all I hear is how those who oppose SSM don't want their children exposed to the "homosexual life-style" or variations on that theme."

As a parent, and as one who questioned his sexuality on more than one occasion, i'll tell you like i told them:

Further, my experience explains my greatest fear for the next generation, that expanding the acceptance and normativity of sodomy will lead to misfits like myself being diagnosed as, and encouraged to come out as homosexuals by the same sorts of social engineers that are currently overdiagnosing children with Ritalin.

The "orientation" issue is a subjective and "self-proclaimed" definition. If it is inborn, and cannot be changed, then where is the objective test for it?

Posted by: Marty at July 20, 2004 2:07 PM

I'm not sure if I were to go as far as Bill that a per se judicial review rule should be adopted that any law passed for religious purposes only are automatically unconstitutional (maybe?), but Bill's idea is quite in touch the Enlightenment Era Lockean modern political theory which founds our nation. That theory holds that the ends of government are ONLY to secure natural rights of the citizenry -- life, liberty, property, and the pursuit of happiness -- that government is only to be concerned of the things of today, not with the "souls" of individuals. That's because the care of every man's soul belongs to himself as Locke put it.

That theory also holds religion to be a matter of "opinion" which government has no business touching. As such we must draw a clear distinction between "religious" matters and "civil" ones. Madison called for "a perfect separation" between these two things.

BTW, it was Jefferson who said that governments' legitimate powers only extend to actions that are injurious to others, that for instance, pick the pockets or break the legs of non-consenting parties.

Posted by: Jon Rowe, Esq. at July 20, 2004 2:17 PM

Marty,

I didn't know this about you. You are admitting to having homosexual tendencies? Did you ever self identify as "gay"?

As far as "objective tests" are concerned, where's the objective test for "left-handedness." Or for "depression" or "schizophrenia"?

Posted by: Jon Rowe, Esq. at July 20, 2004 2:27 PM

Somehow i don't think we need to worry about left-handed schizophrenic depressives redefining bedrock institutions in the name of "civil rights"...

Posted by: Marty at July 20, 2004 3:25 PM

"BTW, it was Jefferson who said that governments' legitimate powers only extend to actions that are injurious to others, that for instance, pick the pockets or break the legs of non-consenting parties."

You would have more of a case if we were talking about sodomy laws, or laws banning gays from living together. But we're not. We're talking about whether we should pretend that SSM is the same (in whatever sense: morally, traditionally, biologically, in its effects on children) as heterosexual marriage. You can come up with all the legalistic rationalizations you want, but marriage is about far more than the legal incidents thereof. And, generally speaking, same-sex couples have access to virtually all of those legal incidents if they so choose. What they don't have right now, and desperately want, is the social and political sanction that will come with legal recognition of SSM. But this won't result in SSM actually being the same as traditional marriage - it will just result in 'marriage' being changed into something else, which will not serve its purpose as well.

Posted by: Mike S. at July 20, 2004 3:49 PM

I'm getting the sense that you approach my posts with the intention to disagree...
----- That's unfair and simply not true. I agree with many of your posts and often add an agreeing comment. To not acknowledge that fact ... I just can't win.

I think you've mitigated Bill's post significantly, here. He was much more assertive than you give him credit for.
—--- Yes, that's true. I was only trying to 'simplify' what I considered the primary point of his post.

All judges are elites; it's almost definitional. And, in comparison with the other branches, they are largely unaccountable. The phrase was meant as a description of the entire branch, not any particular twigs on it.
—--- That's true. But in many cases (local levels) judges are elected. I also happen to think there is wisdom in that federal/state judges are not elected as their duties should remove them of the wrath of public opinion. Finally, they are accountable in some ways. They can be disciplined and even removed.

Frankly, I think your "when" is a bit more disingenuous than my statement.
—-- Actually not. I truly do think the day will come when Roe v Wade is overturned and left to the states.

Regarding abortion, my expectation for the policy to change is that either (1) the Supreme Court will recognize that "abortion" is nowhere mentioned in the Constitution and the matter will go back to legislatures or (2) legislatures will, in some degree and via some mechanism, remove the issue from the judges' reach.
—- I agree and hope for your #1. But I do think that removing certain issues from judges' reach is a very bad precedent regardless of how I may feel about that issue.

As for affirmative action, the courts need only recognize that the Constitution guarantees freedom from racial discrimination.
—-- I happen to agree with you here but many many people disagree with us for what I see as a similar legal reason to your opposition of SSM.

If you wish to attack me with relativism, there's little I can do but shake my head and continue to insist that the fact that certain decisions are whims does not make the opposite decisions the same.
—---- There are some cases where that is true. And there are some cases where, in my view, your whims are just as legitimate as mine - despite being 'opposite'.


"For what reason do you suppose I included the phrase "unless they conflict with explicit boundaries imposed at a higher level of government"? Other than referring you back to the sentence, I've no idea how to address your response.
—----- Alright. First, I acknowledge (for the hundredth time) that I think SSM is a change in the definition of marriage. My response to this post was based on my belief that the 'judicial tyranny' argument is lame and arbitrarily applied.

I certainly don't agree with all supreme court decisions and I'll even acknowledge that the majority of the Mass judges may have been mistaken by saying that current marriage law is discrimination.

I recall the being shocked that the SCOTUS decisions on the Texas sodomy law and the U of M affirmative action decisions were both 6-3. Three members of the SCOTUS thought that the sodomy law did not violate the constitution equal protection clause based simply on the grounds that it applied to same sex sodomy but not opposite sex sodomy. To me, a no-brainer. Also, I cannot conceive how three of the SCOTUS could defend the U of M affirmative action policy as constitutional for the same reasons.

But does this make judicial tyranny ? Not to me. Judicial error ? Big time.

I was merely saying that courts cannot rely (rather, should stop relying) on some external source of moral guidance to rule in contravention of the laws as they exist. Excluded, for example, would be judgements saying, in effect, "Hey, look at this! Apparently, same-sex marriage has been legal all along, and nobody realized it."
—--- I do believe it is appropriate for judges to rule on the 'constitutionality' of existing laws - even those that had been ruled constitutional at earlier times. But I'll agree with you that what is deemed 'constitutional' has been stretched and incorrectly based on a personal source of moral guidance inappropriately. For example, I believe the majority made the right call in the campaign finance law. Money is speech and while limiting money in campaigns may have benefits, the law would limit free speech and the costs of that precedent outweighs the benefits.

Mike, I didn't miss the point (this time) and I happen to disagree with Bill on that but that is the basic libertarian position and there is a legitimate political ideological movement that agrees with him.

Again, I should reiterate that my comment was not meant to clearly advocate for SSM but to dispute the 'judicial tyranny' argument which I felt Justin's post was based on.

Posted by: Mark Miller at July 20, 2004 4:21 PM

"For example, I believe the majority made the right call in the campaign finance law. Money is speech and while limiting money in campaigns may have benefits, the law would limit free speech and the costs of that precedent outweighs the benefits."

Didn't the USSC rule that McCain-Feingold was constitutional? Why are people discussing whether Moore might run afoul of the law with ads for F 9/11?

Posted by: Mike S. at July 20, 2004 4:29 PM

"—---- There are some cases where that is true. And there are some cases where, in my view, your whims are just as legitimate as mine - despite being 'opposite'."

This is one of my, and I would venture to guess, Justin's, biggest complaints about your comments, Mark: someone asserts that some position (A) is based upon a judicial whim, and becomes a de facto imposition of the law based upon as few as 5 individual's personal views on the matter, and that this is a serious abrogation of the way our government is supposed to work; you respond by saying that, "well, position B over here is also based upon a whim, but (you) agree with that position, so why are you saying A is invalid?"

In the first place, the complaint is about the methodology, not the resulting law, so the fact that a law that I favor comes into being due to judicial whim doesn't mean that I think it's OK for judges to make up laws. And in the second place, you routinely throw out counterexamples as being whimsical with no discussion of why that particular example is whimsical - you just state is as a fact. That's why Justin said you were reverting to relativism.

You don't have to keep repeating that you agree that SSM is a change in the definition of marriage - we know that. The question is whether is it appropriate for judges to change that definition or not.

Posted by: Mike S. at July 20, 2004 4:40 PM

The SCOTUS rules McCain-Feingold was constitutional ? Wow, I was under the impression it was not. If that is true, then I disagree with the majority.

Regarding the rest, I still believe that your disapproval of the decision is arbitrary and that if the decision would have come out differently, then your review of the SCOTUS would have been different.

Having said that, I already said that I agree with you on the methodology issue with regard TO THIS ISSUE (redefining marriage). I do think they had jurisdiction but feel that their majority decision was wrong.

While I do feel the majority was correct in the sodomy decision.

So, in summary, I do feel it was 'appropriate' for them to rule on the issue. But I have doubt as to whether the majority was correct in saying that current marriage law discriminated against same sex couples.

"And in the second place, you routinely throw out counterexamples as being whimsical with no discussion of why that particular example is whimsical - you just state is as a fact. That's why Justin said you were reverting to relativism."
----- So you are accusing me of just 'asserting' but not explaining the logic behind it. Sorry, I think that is just not true.

"... someone asserts that some position (A) is based upon a judicial whim, and becomes a de facto imposition of the law based upon as few as 5 individual's personal views on the matter, and that this is a serious abrogation of the way our government is supposed to work"
----- I'm going to stick with this. Your statement that "this is a serious abrogation of the way our government is supposed to work" is just not true. You nor Justin never told me what you would do instead. Yes, Justin said "unless they conflict with explicit boundaries imposed at a higher level of government". I think those that agree with the decision would say that the issue fell under that. So, in your view, what about this issue makes it out of court jurisdiction ? Many many laws are based on the 5-4 majority. Some have argued that GWB was made President because of it. (not me). Prove to me that your frustration is with the 'process' and not solely based on the results in this specific case.

I feel I've explained my view pretty clearly. In my view, it was appropriate that the courts got involved. But I don't agree with the majority view.

Maybe we should change the law to say that law changes from judical review need to be based on more than a simple majority. Fine with me. But stop reinventing me and my method of argument to meet your agenda.

Posted by: Mark Miller at July 20, 2004 5:34 PM

Two quick points, of the many that I intend (hope) to offer:

Mark: Wouldn't the abortion-related "whim" with which you suppose me to support in the Supreme Court be dictated illegality, not federalism? It seems to me that the opposite of a "right to" would be the absolute negation of such, as I thought I'd indicated as my expectation with my two possibilities. I'd go on, but I'll leave it be because I think this illustrates the communication problem that you and I have.

--------

Jon,

The Founders of our nation, as I understand, numbered more than two. Moreover, many were sufficiently prolific that they individually made various points in particular contexts that don't accurately describe the government that they actually created.

If you must hold on to the "harm" notion, then perhaps it will suffice to say that our government leaves space for the governed to decide what constitutes harm.

Posted by: Justin Katz at July 20, 2004 5:42 PM

Mike said:
"One of the points those of us opposed to SSM are trying to make is not that calling SSM the same as traditional marriage will instantaneously collapse the institution - it is that it will lead to changes in attitude, i.e. cultural changes, that will greatly weaken the institution."

I've mentioned that AFDC (welfare), though well intentioned, had long term adverse effects on marriage and the family. I'm open to your advice as to how SSM may have unintended negative consequences as well. Fill me in. What changes in culture and attitudes are you referring to and how are these harmful?


Posted by: Bill Ware at July 21, 2004 8:48 AM

Mark: Wouldn't the abortion-related "whim" with which you suppose me to support in the Supreme Court be dictated illegality, not federalism? It seems to me that the opposite of a "right to" would be the absolute negation of such, as I thought I'd indicated as my expectation with my two possibilities. I'd go on, but I'll leave it be because I think this illustrates the communication problem that you and I have.

You are smarter than I because I am confused by what you mean here (hence, another good illustration of our communication problem).

The court has said there is an inherent right to an abortion. The Mass Court said there is a right for same sex couples to be married. I am aware that the courts do not make law or say that something shall be absolutely negated. They rule on law and sometimes declare laws which do absolutely negate behavior as 'unconstitutional'.

I can see where the abortion analogy wasn't the best because the law criminalized it and the court said the law that was unconstitutional - thereby making it 'a right'.

Affirmative action is a better example because the law did not criminalize a behavior and the opposite-ness you describe does not apply.

Yet my point still stands that the 'judicial tyranny' argument is arbitrarily applied only in those situations where the court majority did not rule on your side. I'll acknowledge that the abortion analogy doesn't work but you failed to mention why my other examples such as the 2000 election or affirmative action rulings do not apply.

By the way, do not think this means that I agree with those decisions (or use it as an argument against me as in "see, he supports abortion !". There are many court decisions I disagree with - I just don't scream 'judicial tyranny' each time it happens. I thought I already said this in my earlier comment buy as you said, we have a communication problem.

Posted by: Mark Miller at July 21, 2004 9:14 AM

"Yet my point still stands that the 'judicial tyranny' argument is arbitrarily applied only in those situations where the court majority did not rule on your side. "

Have you, or can you, cite an example of a decision that fits the judicial whim criteria, but which conservatives don't complain about because it was decided in their favor?

I don't have time to go into it now, but I think part of the issue is that the modern liberal philosophy is far more conducive to the "the Constitution is a living document" and the idea that the masses need to be told how to live by the elites. Thus the very concept of judicial capriciousness runs contrary to conservative principles, while being consonant with a lot of other liberal principles. But I'm open to contrary examples...

Posted by: Mike S. at July 21, 2004 11:06 AM

Have you, or can you, cite an example of a decision that fits the judicial whim criteria, but which conservatives don't complain about because it was decided in their favor?
----- 1) The 2000 election fiasco in Florida & 2) One of the one affirmative action decisions against U of M. (I think there were 2.)

Yes, you and Justin can give specific reasons as to why those decisions were appropriate and justified and, you know what , I'd agree with you. My point is simply that just because you don't happen to agree with the majority, doesn't make it 'judicial tyranny' in all those cases.

"I don't have time to go into it now, but I think part of the issue is that the modern liberal philosophy is far more conducive to the "the Constitution is a living document" and the idea that the masses need to be told how to live by the elites. Thus the very concept of judicial capriciousness runs contrary to conservative principles, while being consonant with a lot of other liberal principles."
------ Better sit down Mike - I agree. We just disagree on where those are applied.

For me, this is not about what the judiciary did. It is about whether same sex relationships should be legally acknowledged (the costs vs. benefits argument) - not how it came to be.

Posted by: Mark Miller at July 21, 2004 12:22 PM

But Mark, you can't draw a line between the costs and "how it came to be."

Posted by: Justin Katz at July 21, 2004 1:05 PM

"But Mark, you can't draw a line between the costs and "how it came to be.""

Precisely.


"------ Better sit down Mike - I agree. We just disagree on
where those are applied."

My point has always been that in the cases where we do agree, we agree for very different reasons. Those differences become highlighted in the case of SSM, where we might not have noticed them in the other cases. And I maintain that those differences are of fundamental importance.

Posted by: Mike S. at July 21, 2004 2:22 PM

I was referring to the direct costs of how legitimizing same sex relationships would affect the society and culture.

And, in my view, there is distinct line between the debate as to whether the Massachusetts Supreme Coutt majority was correct in saying that current marriage law discriminates against same sex couples and the debate as to whether same sex relationships should be legally acknowledged.

Posted by: Mark Miller at July 21, 2004 2:47 PM

Mike S: "Have you, or can you, cite an example of a decision that fits the judicial whim criteria, but which conservatives don't complain about because it was decided in their favor?"
Mark: "1) The 2000 election fiasco in Florida & 2) One of the one affirmative action decisions against U of M. (I think there were 2.)

Mark, the trouble with this approach is that it cedes any claim to truth. If everything is just a matter of opinion, then we've taken a giant step backwards in civilization.

The comparison to Bush v. Gore I find particularly galling. The Florida statutes had a clear procedure for conducting elections, including a challenge procedure. The executive branch followed the procedure and certified Bush as the winner. Then it conducted the challenge per the statutory procedure and re-certified him as the winner.

Then the Florida Supreme Court decided that it would invent some new rules that didn't appear anywhere in the statute, for which there was no legal basis. The entire country was thrown into turmoil over this obvious lawlessness. All the US Sup Ct did was to stop the runaway FL Sup Ct and clarify the principle that judges can't make election law on the fly while the ballots are being counted.

I'm sure you already know that whole story and agree generally with my view of it. We part company when you say:

"Yes, you and Justin can give specific reasons as to why those decisions were appropriate and justified and, you know what , I'd agree with you. My point is simply that just because you don't happen to agree with the majority, doesn't make it 'judicial tyranny' in all those cases."

We aren't calling things "judicial tyrrany" simply because we disagree with them. It's only "judicial tyrrany" when the courts take important matters away from the political branches and impose their personal views rather than the law. There is a difference between inventing a new election recount procedure ex nihilo (FL Sup Ct) and insisting that the legislature's procedure be followed (US Sup Ct). They are in no way comparable. One obeys the voice of the people, the other the voice of the elites.

Some things are not matters of opinion, including whether it's lawful for a court to disregard statutory election procedure and invent new rules out of thin air.

You cannot casually toss aside the idea of absolute truth. Otherwise, some future politician will adopt Gabriel's logic about infinitely flexible definitions: "Sure, you have freedom of speech and religion under the First Amendment. Except I'm going to tell you what counts as speech and religion, and I can pick any definition at all." (Come to think of it, that pretty well summarizes the McCain-Feingold bill.)

If we can't agree on some basic truths---or even on whether there is such a thing as truth---then we simply won't have a civilization in a few generations.

Posted by: Ben Bateman at July 22, 2004 6:50 PM

Ben, I actually agree with much of how you responded in the *theoretical* sense. (the mathematician coming out in me)

If everything is just a matter of opinion, then we've taken a giant step backwards in civilization.
----- Yes, that's true - in a sense. But then you and others have argued that the issue should be left to the legislatures who ... make laws based on their opinions with a majority rule ... don't they ?

We aren't calling things "judicial tyranny" simply because we disagree with them. It's only "judicial tyranny" when the courts take important matters away from the political branches and impose their personal views rather than the law. There is a difference between inventing a new election recount procedure ex nihilo (FL Sup Ct) and insisting that the legislature's procedure be followed (US Sup Ct). They are in no way comparable. One obeys the voice of the people, the other the voice of the elites.
---- I do agree with you that the majority in the 2000 election made the correct decision. But there are many lawyers and judges out there who feel otherwise - some for legal reasons and some based on the 'voice of the people' argument as in 'the voice of the people in Florida were silenced by the decision'. Now, as I've said, I agree with you that that is an unfair accusation in this case. But my point is this:

You are asserting that the Mass SJC took an important matter away from the political branches and imposed their personal views rather than the law. I am arguing that there was some basis for their finding. It is not in the Constitution (state or federal) that marriage is clearly defined as a man and woman. I'll acknowledge that has been the historical/traditional view and that adopting SSM is a change in the definition as historically defined. So, to me, what the majority did in that case was not like the FL SJC did. The FL SJC ignored current law and, as you said, invented a new procedure. The Mass SJC did not ignore current law. You can legitimately argue that they incorrectly used 'equal protection' and 'liberty' to justify their decision. But I do not see how they can be accused of 'tyranny' as they are responsible for interpreting the Constitution and applying that to current scenarios. To me, their majority decision was no more 'tyrannical' or based on personal views as those of Scalia whose decisions are also based on his personal view of homosexual behavior.

"Some things are not matters of opinion, including whether it's lawful for a court to disregard statutory election procedure and invent new rules out of thin air."
"If we can't agree on some basic truths---or even on whether there is such a thing as truth---then we simply won't have a civilization in a few generations."
---- Again, in theory, I agree with you here. Where we part company is that you assert that the marriage as the union of a man and a woman is a basic truth. I've acknowledged that I differ with Professor Rosenberg in that I can see some legitimacy with the 'definitional' argument but not most of the others used by SSM opponents. But where you and I clearly disagree is that I do not believe that denying same sex relationships legal acknowledgment falls under the basic truth guidelines.

Posted by: Mark Miller at July 23, 2004 12:19 PM