Thursday, October 30, 2008

Best of the Bloggernacle vol. 1

Great posts from the past week:

Conversion Happens at the Darndest Times. Tracy M at BCC. I love narratives where the mundane course of life is suddenly interrupted by the ethereal. Almost had me in tears in the middle of my law office. Had to stop reading.

Proposition 8. Jonathan Green at T&S. One of the more insightful Prop 8 posts out there.

PBR #9. Steve Evans at BCC. One of the funniest ones yet.

12 Questions for the LDS Newsroom. Dave Banack at T&S. T&S scores a great scoop, but the answers seemed a little...muddled?

Why I support Prop 8

Quite simply, the judges got it wrong.

In exercising all sorts of legal jujitsu to conclude that there is a fundamental, constitutional right to homosexual marriage, the majority's 127 page opinion can be summarized as follows:

Existing constitutional right to marriage + Social acceptance of homosexual relationships = Constitutional right to homosexual marriage.

The problem with this is that new rights shouldn't be discovered in the Constitution by judges just because society accepts certain arrangements at certain points in time, unless society's approval has been expressed through the legislative or voter initiative process. In contrast, the California legislature enacted a liberal domestic partnership law but purposely stopped short of calling such arrangements "marriage." Similarly, in 2000, the voters of California (although a minority of Californians) approved a ballot initiative defining marriage as being between a man and a woman. Right or wrong, the legislative and voter initiative processes in California have both rebuffed expanding the definition of marriage to include homosexual unions.

In fact, the controlling law in California states that fundamental, constitutional rights are those "which are, objectively, deeply rooted in this [society's] history and tradition [and] implicit in the concept of ordered liberty such that neither liberty not justice could exist if it were sacrificed." (Washington v. Glucksburg (1997) 521 U.S. 702, 720-721, as cited approvingly in various California cases).

There are no grounds to assert that a right to homosexual marriage has been deeply rooted in our society's history and traditions.

This is established much more eloquently in Justice Baxter's dissenting opinion in the In re Marriage cases, which can be read here, starting on page 128:

In re Marriage

Unfortunately, the majority's imprimatur on this decision has mainstreamed the idea that the gay marriage debate is about constitutional rights (although even the plaintiff's briefs were too afraid to go as far as asking for a new right, the majority went ahead and did this for them). Once this happened, the No on 8 campaign obtained a sort of faux-moral high ground by gaining the ability to label traditional marriage advocates as haters who want to take away fundamental rights. This is all symptomatic of the fact that we haven't developed a good way talk about what rights we as a society deem to be fundamental as a separate issue from whether rights are being taken away or not.

Uninformed No on 8 partisans will misunderstand what I am saying here, so the following paragraph is for them:

It may very well be that the time has come to expand the definition of marriage to include homosexual unions. But, if that is to happen, it needs to happen by the people of California expressing their opinion on this subject through the legislative process. To date, the people of California have actually rejected the idea. Circumventing this process by having the courts suddenly find that your cause has actually been a fundamental right all along does lasting damage to the constitution and democratic process. And claiming that the newly invented right to homosexual marriage is actually an ancient and fundamental right, and then using this as a brush to paint all Prop 8 supporters as haters and bigots, is beyond the pale.

If you don't believe me, Barack Obama pretty much said the same thing in his now famous 2001 radio interview where he explained where civil rights advocates went wrong in relying on the litigation process to broaden the definition of rights.

Tuesday, October 28, 2008

Redistribution of Wealth

Bryce Hammond's post here:

Wealth Redistribution

is off-target enough that I wanted to link it and add a few comments here. Since I think he shut down comments on his blog, feel free to continue the conversation here.

A few points-

1. Obama's now famous 2001 interview clearly shows that, as a constitutional law professor, he is critiquing the civil rights movement for relying too much on litigation and the court system in pursuit of civil rights, rather than building consensus through the legislative process. He gives the example that civil rights leaders were never able to get the distributive justice they wanted through the courts, and points out that the legislative process is the more appropriate way to do something like that. This is the overwhelmingly conservative position to take.

2. All six of the countries ranked above the U.S. in the most recent UN standard of living survey have more socialist policies than the U.S. (Sweden, Norway, etc.) So the argument that socialism is doomed to fail no matter what seems untenable without some kind of metric or substantiation.

Friday, October 10, 2008

Prop 8 and the Decline of Civic Education

Although the Church's recent Prop 8 broadcast had a positive tone and effectively leveraged the Church's religious arguments for Prop 8, there was still something unsettling about the whole thing. In making purely theological arguments on one hand, and only the most dubious civil arguments on the other, the Church didn't make any attempt to explain how or why our private, religious morals should also be the law of the land.

The Church's theological position on marriage is very clear. Although ancient and modern scripture may be ambivalent on the subject, the recent Proclamation on the Family and Church Newsroom releases draw an unequivocal line in the sand on the issue of same sex marriage. I have no problem at all with this theological position and applaud the Church's efforts to stress this to its members. A lot of time on the broadcast was spent reiterating the fact that marriage between a man and a woman was ordained of God. OK.

The problem I have is the way that is increasingly seen by members of our Church and other religious people as an automatic argument as to why that value should be reflected in the civil law. I'm not saying that our religious teachings shouldn't be reflected in civil law, just that we need to think about and understand the difference between theological and civic values and have good reasons why some religious positions make good civil law while others don't. The broadcast offered nothing along these lines.

I fear that this blurring of the lines between civil and religious authorities is part of a larger decline in civic education in our society and, perhaps, especially within the Church. For example, the whole line of attack on the judiciary that is a centerpiece of this campaign (and other right-wing campaigns for the past several years) is based on a complete misunderstanding of our civic institutions. The fact that this line of attack can be used to reliably rouse the religious right indicates a profound lack of knowledge of the role of the judiciary and, perhaps, a lack of respect for the foundational documents of our country.

A particularly cringe-worthy moment in the broadcast was during the video clip of the group of young people organizing a Prop 8 meeting, when one of them said it didn't feel very American to have judges overturn the majority vote of the people. Do I need to respond here that overturning the majority will when constitutional rights are involved is one of the most profound reasons for why we even have a judiciary? (Never mind that the video included the canard that 61% of the population of California voted against same sex marriage in 2001). That in a healthy republic, we would expect judges to overturn ballot initiatives fairly frequently? That our founding fathers were distrustful enough of majoritarian outcomes to design a republican system to temper them?

Overall, the lack of any language or framework with which to describe how we translate religious values into civil laws, together with the lack of respect for our most basic civic institutions, makes me wonder whether there is something wrong with the state of civil education ("social studies" or whatever you want to call it) manifesting itself during this campaign.