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Why Young Coservatives Should Not Worry about Gay Marriage
Submitted by Shireman on Mon, 04/06/2009 - 14:10
in
With my home state's Supreme Court making it’s now famous decision the other day, gay marriage is on the cusp of the lip's of many. A few days before the gay marriage decision, I was thinking about as Young Republicans, what do we want of the world? What do we want to see? What do we want our image to be? A thought from the brilliant William F. Buckley came to mind. He described people whom he viewed as "Small C Conservatives" and "Big C Conservatives." In our modern political climate, where our party has been hijacked by the religious right, Mr. Buckley's words were like a gust of fresh air. Buckley is my new hero. Plain and simple. According to the father of National Review, a Conservative (or "Big C") is one who concerns themselves with fiscal issues and stands as a libertarian on the social ones. This is the true follower of the ideology. As for gay marriage, I'm going to take Mr. Buckley's advice and forget it. I've got a U-Bill due Tuesday.
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Comments
Huh? So why shouldn't young conservatives worry about SSM?
First off, I think it's fair to say that Buckley wrestled with the libertarian strains and traditionalist strains in conservatism that are so often in tension with one another during the entirety of his career. He also once admitted that he would allow smoking if he had the power to do so based simply on the adverse effect it had on his wife's health and his own health -- but I wouldn't use this admission on his part to say the conservative movment should become advoates of greater regulation in the interest of public health. And absent some sort of citation or at least a direct quote, I'm a little skeptical that the you've correctly conveyed the sentiment of his thought in the particular remark you reference.
Second, while those on the libertarian side of the social issues may support or be indifferent to same sex marriage, they may want to think about whether they really want this being decided by state supreme courts on the flimsiest of grounds. Libertarians may be happy with the particular outcome in this case but they should be concerned when the judiciary imposes its will without having the authority to do so.
And libertarians should be concerned about the downstream consequences of these decisions: once we equate preference for sexual conduct with a protected class of persons it won’t be long before people’s freedom to assert their disapproval of such persons starts being curtailed.
What is it that you think courts DO?
The Iowa Supreme Court decided unanimously that the statute in question violated the equal protection in the state constitution. What is your basis for arguing that they had no authority to do so? I mean - isn't that exactly what Supreme Courts, by definition, are set up to do?
I have to agree with this...
It was really bizarre to hear some Iowa rep complaining that their decision was "unconstitutional". They are the body whose responsibility it is to decide what is constitutional or not, and they publish a decision explaining their rationale and precedents.
That process contrasts to the political demagoguing typically used to get these marriage bans passed in the first place.
A 69 page decision.
A 69 page decision. Unanimous.
If it had been under 20 pages . . .
. . . . would you be more skeptical?
Honestly, do you really think the page length is a sign of its cogency as a legal argument? Have you read the thing?
In other words . . .
really bizarre to hear some Iowa rep complaining that their decision was "unconstitutional". They are the body whose responsibility it is to decide what is constitutional or not
In other words, the court does not decide if X is constitutional. X is constitutional because the court decides it is.
that is correct
Whom do you want interpreting a constitution? An appropriately-educated deliberative body with years of prior legal experience? Or laymen who often choose to support legislation because it comports with their personal tastes or religious beliefs?
I have never suggested . . .
. . . that I want anyone else besides the proper appellate courts interpreting the constitution.
That doesn't mean that every judicial exercise of constitutional interpretation is appropriate.
That I have to explain this to a conservative/libertarian audience is truly baffling.
so what is your complaint?
From your original post:
Second, while those on the libertarian side of the social issues may support or be indifferent to same sex marriage, they may want to think about whether they really want this being decided by state supreme courts on the flimsiest of grounds.
Fair enough. What are these "flimsy grounds", and what firmer ground is the overturned legislation resting upon?
"once we equate preference for sexual conduct with a protected class of persons it won’t be long before people’s freedom to assert their disapproval of such persons starts being curtailed."
A couple of points. First of all, there would be no need to equate homosexuals with a protected class of persons if it were not for legislation specifically passed to prevent them form exercising the right to marriage. Without discrimination, there is no need to protect.
Secondly, do you have any evidence that a additional protective legislation has been applied to other groups? For example, is there legislation that limits one's freedom to disapprove of other protected classes? Short of those examples, I think your fear of a slippery slope is presumptive.
my complaint
"What are these 'flimsy grounds'"
First, the idea that the original meaning of Iowa's equal protection clause was intended to redefine marriage is not tenable.
Second, by defining the purpose of Iowa's marriage law to be to provide an institutional basis for defining relational rights of persons in committed relationships it makes a policy determination that is not proper for the judiciary. Further it is an act of rhetorical slight of hand whereby the court simply defines the male/female element of marriage out of the equation - that is they answer the question of how to define marriage by simply providing their own novel definition.
Third, the court engages in the type of reasoning that leads to them making declarations about an "individual's sense of self". This type of psychobable about determining one's meaning in life is a clear sign that the court is neglecting it's job to interpret and apply the law.
A few points, for starters, I would need more time to closely look at the opinion to give a more substantive critique.
"and what firmer ground is the overturned legislation resting upon? "
It rests upon the will of the people, through the democratic purpose. The definition of marriage is a political question and therefore for the legislature or voters to decide.
Re: what i think cts do
If I understand your point, you are suggesting that because the Iowa Supreme Court cited their state's constitution as their reason for invalidating the state's law it was therefore a proper exercise of authority. First off this begs the question by assuming that the court properly applied the constitution.
But more importantly, your point betrays a remarkable naïveté about how courts exercise (and misuse) their authority. Of course they cited their constitution as the reason behind their ruling. Judges always claim their rulings are based on the law in some form or fashion (the constitution, plain meaning of a statute, statutory intent, past precedent, etc.) – they never declare that they are creating policy out of whole cloth simply because it suits their preferences (the only possible exception I can think of is some common law cases where courts basically declare they are creating new law – something that is entirely their prerogative in the case of common law). That doesn't mean that isn't exactly what they are doing.
Who is the authority re the Iowa state constitution
Who is the authority re the Iowa state constitution if not the Iowa Supreme Court? Who else is supposed to adjudicate cases that claim that an act of the state legislature violates the state's constitution? Why is the system of checks and balances supposed to be suspended for social issues?
obviously the Iowa Sp Ct . . .
. . . Is the proper body for interpreting the Iowa constitution (I never said otherwise). But by your logic no matter what the court ruled it could never exceed its authority as long as it declared that in the exercise of its power it was upholding and enforcing the state constitution since non of us our in a position to say otherwise.
another thing i didnt claim
"Why is the system of checks and balances supposed to be suspended for social issues?"
How you construed what I wrote to imply the above is beyond me.
Correct answer
Who is the authority re the Iowa state constitution if not the Iowa Supreme Court?
The state legislature.
I guess that why we hear of so many famous cases
in which congress declares laws unconstitutional.
Well...
I suppose that's why we pay income tax after the Supreme Court declared it unconstitutional.
Wesley Snipes agrees with you
from his jail cell.
NextRightNando, your ability to miss the point
NextRightNando, your ability to miss the point is really remarkable.
"First off this begs the
"First off this begs the question by assuming that the court properly applied the constitution."
They are, by definition, the most qualified to perform that job. If you disagree with their ruling, the first approach is to quote the relevant portions of their decision in which they erred.
"they never declare that they are creating policy out of whole cloth simply because it suits their preferences"
I think you misunderstand the purpose of judicial review. It is a necessary check on legislative abuse. The Iowa supreme court did not "create policy out of whole cloth." At the behest of plaintiffs, they reviewed recently-passed legislation and agreed with the plaintiffs that it was indeed inconsistent with the constitution that they are sworn to uphold.
One could easily counter that it was the law they overturned that represented an attempt to "create policy out of whole cloth."
Again, I would like to see in particular the portions of their decision in which you feel they strayed from constitutional precedent.
Pure bullshit
They are, by definition, the most qualified to perform that job.
Nope. They are elected officials. Nothing about being 'the most qualified' in the job description.
Quote that portion of the Iowa State Constitution that says that only the most qualified individuals might seek any public office.
The Iowa supreme court did not "create policy out of whole cloth."
Pure bullshit.
Isn't it amazing how the Left can cry "Stare decisis!" the one day, then abhor it the next?
How is it that marriage is a guaranteed right? Does the state allow people in prison to marry?
FYI, a "right" is the absolute minimum of protection guaranteed by the sovereign.
The issue at hand is one of the absolute minimum.
"Nope. They are elected
"Nope. They are elected officials. Nothing about being 'the most qualified' in the job description."
By the definition of the qualifying test (a public election), they are in fact the most qualified. If you have an issue with the qualifying test, you should criticize that.
"How is it that marriage is a guaranteed right? Does the state allow people in prison to marry?"
Marriage is not a guaranteed right but equal protection under the law is guaranteed. There are Amendments to the Constitution besides the 2nd, you know.
Fish. Barrel.
Did you learn that in kindergarten?
A government of the most qualified would be an aristocracy. See The Republic.
A democracy is government by the most popular-- not quite the same thing.
Now, you might not understand what the word "protection" means.
Here's a test. When something is not protected, it then comes to harm. A thing can only be protected from some such other thing that would then cause harm.
So, what harm is there to disallowing marriage in certain instances?
What is being protected?.
an aristocracy??? you take that back!
It would be our own beloved Civil Service, as based on the Chinese system of qualifying examinations to join the bureaucracy.
ayup, just like Poplawski
oh wait, he had a gun, so ain't nobody be stoppin' him.
Wrong on both counts
They are, by definition, the most qualified to perform that job.
No, they aren't. They are by definition the holders of the office invested with the authority to interpret the constitution. Their particular qualifications may have very little to do with holding that office (and that goes for states with both elected supreme courts and appointed supreme courts).
I think you misunderstand the purpose of judicial review.
As a lawyer who works closely on appellate court issues I assure you I do not.
The Iowa supreme court did not "create policy out of whole cloth."
I didn't say they did. I said that judges never openly admit to creating policy, they always claim they are interpreting the law. My point is that it's not a very good point, when arguing against a claim of judicial activism, to simply say, "No look, they based their decision on the law" since every judge claims to do so.
"They are by definition the
"They are by definition the holders of the office invested with the authority to interpret the constitution."
Fair enough. But who gets to decide who's qualified and who's not?
"I said that judges never openly admit to creating policy, they always claim they are interpreting the law."
Yes, and legislators never admit to passing unconstitutional legislation, they always blame judicial activism. Where do you go with this? You have to amend the constitution if you don't like the way it's being interpreted by the people specifically charged with that responsibility.
Claims of judicial activism can just as easily be the fallback for people who can't get their pet legislation passed. And with regards to SSM, you have to wonder what their real motivations are behind the legislation. After all, nobody really believes that "sanctity of marriage" BS... I hope!
I don't give a duck what people do in their churches.
just so long as I can take my piece of paper, rassle up a few witnesses, and get married by signing a legal document.
when they get in the way of that, I get irate. (and they have. I was unable to be married in the way I wished, because of some stupid fundie challenging Quaker Marriages for people who weren't quakers).
Yeah, right
Until someone walks into a synagogue and guns down a bunch of people.
Why should anyone care?
that was last year. Ohio. Bombing in a Mosque.
I do keep track, you know?
research studies I've read show that
conservative judges tend to be "activistic" than liberal ones.
The best of imperfection
This is an crucial issue the gets brought up again and agian. And as a Libertarian, I think Reps squarely come up on the wrong side of this.
A constitution is a large legal framework for providing long term vision to ruling. The US constitution doesn't go over every law the should not be applied through the centuries. Take the Freedom of Speach . . . . it's not specific and we've decided (by specific law) that you do not have the right to print lies about someone. A supreme court by definition has the job deciding the fuzzy parts of that consitituion. The US supreme court ONLY decides what it considers issue that are pertinant to the constitution.
Are they always right, heck no. The US supreme court has made very tragic decisions, but you're probably better off with them than pandering politicians and mob rule.
A state can change it's constituion, and the supreme court will arbitrate base on that changed consituion. But it, like the US constitution is purposely hard to change. Get it right the first time, and leave it. Else you have Venezuala.
However, everybody cries 'foul' when they don't get their way. Fact is, little 'c' conservatives are losing this fight along with abortion. The courts will be the first to rule, and then legislation will follow. The courts aren't elected but you'll see (ball-less) liberal polls follow in the wake of judicial verdicts. Then accepted laws between the states will get very complicated. They'll be law suites and quibbles, but eventuall people will find it's not worth their time and money to pursue. Religious groups will further retreat into a social hole and await the second coming.
-----------------------------------
Gays want the same right as everyone else: that is, two consenting adults chosing who they have a union with. I know the arguement that they have the right to chose whom they get married to as long as it's the opposit sex, but that is very akin to ford's statement of 'you can have any color model-T you want, as long as it's black.'
Flat out, it's descrimination. There are gay dogs, gay sheep and other gay animals. Heck, if you really look at biology, there are poly sexual animals. It's not strange, it's simply not the norm.
"I know the arguement that
"I know the arguement that they have the right to chose whom they get married to as long as it's the opposit sex, but that is very akin to ford's statement of 'you can have any color model-T you want, as long as it's black.'"
It's also the same argument used years ago to prevent intermarriage between blacks and whites, or Jews and Christians.
To libertarians, the gay marriage restrictions are plainly attempts by social conservatives to legislate their personal moralities. And what if my church wants to marry gays? Are these laws now trampling over their first amendment right to practice their religion?
The motivations for gay marriage bans are riddled with holes and this is why none are lasting. When all legal and principled arguments are exhausted, the proponents fall back on majority vote -- the last refuge of discrimination.
In a generation, the majority vote defense will have fallen as well.
This does not represent an advance of liberalism, but of libertarianism, and I think our founding fathers would approve.
my founding fathers would approve.
I don't know so much about the Cavaliers and Puritans....
I can't believe I'm right so fast . . . (vermont)
That is now legal apart from a judicial ruling. It now gets harder and harder for oppoenets . . . although the fight isn't over. I'm not gay, but I'm a adament believer in laws apply to all. For gays, blacks, and especially the president and our representatives.
Personally, if a church does not want to marry a gay couple . . . that's their choice. But legally and by the state, there should be an option. I almost married a catholic chick once, and I was going to have to do some 'Pope is infalable' proclomation or other. So that exist for straights as well.
------------------
And Liberarian Alert! It seems like Obama is justifying warrentless wiretapping by the phone companies. Talk about arbitrary handling of the law.
http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2009/04/06/BARP16TJOQ.D...
Typical Libertarian drivel
That is to say, so myopic that it's nonsensical.
First of all, a constitution is a governing body of law for committees and officers only. PolSci 101 will tell you (and mark my words, because this is a direct, verbatim quote):
Any constitution is necessarily vague.
We are most decidedly NOT governed by a constitution, but rather by civil and criminal statutes. That whole "statutory law" thing, which we brought with us from England.
This is a very typical scenario.
The Leftist want to whine about how some group is 'victims.' They want the world to bend over and kiss their asses.
They look for (and some of the less perceptive among them actually go so far as to "see") some blatant "right" that these poor victims might have for the world to bend over and kiss their asses.
I say they all need a good ass-kicking.
with those pipebombs you have stashed in the car?
or is it fucking assault weapons? (19th is hitler's birthday, get your violence done before the rush!)
MY LORD, these calls for violence have to STOP!
I will be praying that you find your chosen religion, and can cleanse yourself in the means that you see fit of these violent desires to hurt peaceful folks.
otherwise people end up dead
Just what I needed
A drama queen with a penchant for hyper-exaggeration.
Take another hit of crack and calm down.
hyperexaggeration?
poor ilka fool.
what I mentioned was straight out of the papers this morning.
Certainly not
...involving the person to whom you were speaking.
So strike "hyper-exagerration;" insert "excessive projection."
Are you even capable of differentiating between one person and another?
You dolt.
The Conservative Problem with SSM is similar to abortion.
If the conservatives argued for, say, a right to privacy, they would be able to get quite a few folks on board.
But the counter-arguments come of the form "but people will do X!"
Well, for most values of X, people are already doing X. Half of those things happen under the protection of the law.
For example: abortion (or, for that matter, non-procreative sex).
Gay Marriage was a winning issue for conservatives for an election cycle or two. As time passes, however, it's less and less and less so. It gets more and more depressing denying civil protections to a couple of guys.
And, meanwhile, all of the conservative values that MIGHT have been preserved had there been an assumption of a right to privacy are lost. Why? Because of abortion, homosexuality, and SSM.
Which, looky there, are now legal.
And we have no acknowledged right to privacy by either "side".