On constitutional interpretation:
Just wanted to take a quick second and clarify my position on constitutional interpretation. While I believe it's foolish to ignore original context in some cases, I also believe that trying to figure out what a handful of elite individuals meant when they wrote a document during a hot Pennsylvanian summer more than 200 years ago is not the best way to answer questions about social issues that affect us today. Original intent is difficult to divine. Contexts change. Ambiguities arise. The legislative process is too slow to adapt to new contexts, and too unlikely to respond to people who don't speak loud enough. We need an institution like the Supreme Court that is capable of adapting quickly.
Yes, the constitution is a check on the Supreme Court. But not in the sense that any hypothetical "original" interpretation of the constitution should have more weight than any other guide. Modern interpretation of the constitution should be the greatest guide.
The People should amend the Constitution when their modern context of what is right moves away from the text of the Constitution. But when the text of the Constitution is flexible enough that it may be interpreted in a manner adapted to modern contexts, the People shouldn't be required to amend the Constitution to tell the Court that the Court's hypothetical original interpretation is wrong. If the Court's modern interpretation is disagreeable with the People, the People may then correct the Court by amending the Constitution to clarify to the Supreme Court that the Court's modern interpretation is not the will of the People.
I don't have any problems with the idea of 9 judges having such power. In my opinion the good of having an arm of the government that can do what our modern judiciary does far outweighs the risk of the Supreme Court departing significantly from the good of the people. Besides, there are still other checks--for example, the President and Congress can work in tandem to add more judges if the 9 get out of control. E.g. FDR.
Alvin (and others) -
On your "separate but equal" arguments, this is exactly why my gut instinct is that we should move the opposite way and remove all reference to marriage in any law or regulation, not just the assignment of benefits. What is marriage in the absence of religion? Is it anything more than a contract? Let people contract with whomever the please, and leave it to religious institutions to define and preserve the institution of marriage.
(I'm still a little uneasy on this idea, though, when it comes to adoption).
If you have to learn about constitutional law from one source, Rex Lee is a good one.
The right to privacy has always been, in my mind, the most suspect of "rights." But at the same time, I don't believe you should need a constitution to define a right specifically, if the right is a natural right. And I don't see anything wrong with the Court recognizing new natural rights--i.e. rights that are inalienable, but that we just haven't "seen" before. Substantive due process is just a legal way of saying that something's a natural (legally speaking, "fundamental") right. If we didn't have substantive due process, the Court would just find another legal concept to cling to for these natural rights. Even Scalia and Thomas have come to rely on the substantive due process concept from time to time.
Interesting thoughts on the First Presidency. I'll have to think about that some more.
Showing posts with label same sex marriage. Show all posts
Showing posts with label same sex marriage. Show all posts
Monday, August 4, 2008
Wednesday, July 23, 2008
August Book, and more on SSM
Next month's book
So I just remembered that I have the book choice for next month (and I just realized that July is almost over). I had originally thought to do Obama's first book, "Dreams of My Father," but I'm all politicked out right now. (FYI, the book has very little to do with politics, and was written at a time when he was still pretty far removed from the political arena, which is why I think it's a very good way to judge his character).
Instead, I've selected The Third Policeman. It's a surrealist story by a not very widely known Irish author named Flann O'Brien. I read a review in the Atlantic on it a while back that peaked my interest (the connections to Lost helped as well).
I've not read it yet, but I have no reason to suspect objectionable content. I will warn people if I find any. I do, however, suspect that some may find it to be a very odd read, so you might want to read some of the reviews before deciding whether or not to buy it.
More on SSM
(this started as part of a comment on Peter's last post, and just started to get too big)
Regarding court decisions on SSM, I do believe that our governments, in basing any sort of law or benefit on marital status, and furthermore by creating mechanisms by which to "validate" a marriage, have created a government-sponsored institution of marriage. If government creates an institution, it also creates a right for individuals who meet the necessary criteria to belong to that institution. Therefore, the right to marry does exists. Just because there are qualifications on that right, does not mean it is not a right--e.g., there are many qualifications on free speech, nonetheless, it is a right.
The question before the courts, in my mind, was "is there a compeling reason for making gender a criteria for the right to marry?" The courts could not think of such a reason, and therefore they did what they had to do. It was this exact same framework that brought about the civil rights movement, and it is exactly this kind of purpose for which our judiciary exists. Now, the burden is upon the legislative branch to either write laws for which there is a clear and compelling secular reason, or upon us as a people to amend the constitution to explicitly define this right to marry.
Personally, I believe that, barring some compelling secular reason that I've so far not seen formulated, government should be marriage-agnostic. It should remove any reference to marriage in its laws and procedures. From a religious standpoint, does it really matter whether government recognizes my marriage?
So I just remembered that I have the book choice for next month (and I just realized that July is almost over). I had originally thought to do Obama's first book, "Dreams of My Father," but I'm all politicked out right now. (FYI, the book has very little to do with politics, and was written at a time when he was still pretty far removed from the political arena, which is why I think it's a very good way to judge his character).
Instead, I've selected The Third Policeman. It's a surrealist story by a not very widely known Irish author named Flann O'Brien. I read a review in the Atlantic on it a while back that peaked my interest (the connections to Lost helped as well).
I've not read it yet, but I have no reason to suspect objectionable content. I will warn people if I find any. I do, however, suspect that some may find it to be a very odd read, so you might want to read some of the reviews before deciding whether or not to buy it.
More on SSM
(this started as part of a comment on Peter's last post, and just started to get too big)
Regarding court decisions on SSM, I do believe that our governments, in basing any sort of law or benefit on marital status, and furthermore by creating mechanisms by which to "validate" a marriage, have created a government-sponsored institution of marriage. If government creates an institution, it also creates a right for individuals who meet the necessary criteria to belong to that institution. Therefore, the right to marry does exists. Just because there are qualifications on that right, does not mean it is not a right--e.g., there are many qualifications on free speech, nonetheless, it is a right.
The question before the courts, in my mind, was "is there a compeling reason for making gender a criteria for the right to marry?" The courts could not think of such a reason, and therefore they did what they had to do. It was this exact same framework that brought about the civil rights movement, and it is exactly this kind of purpose for which our judiciary exists. Now, the burden is upon the legislative branch to either write laws for which there is a clear and compelling secular reason, or upon us as a people to amend the constitution to explicitly define this right to marry.
Personally, I believe that, barring some compelling secular reason that I've so far not seen formulated, government should be marriage-agnostic. It should remove any reference to marriage in its laws and procedures. From a religious standpoint, does it really matter whether government recognizes my marriage?
Tuesday, July 22, 2008
Peter's Bric-a-brac
State of Fear: Paul, it's been a month since our last book club. I don't know if you've been thinking about what you want to post in re Michael Crichton's polemic, but I'd certainly be interested in your thoughts. I have my own, but I'll wait until you've opened things.
Constitutional Law: I really enjoyed Christopher's post regarding the Constitution and how it should be interpreted. Based largely on the bad taste in my mouth after the MA SSM decision, which had no basis in law IMO, I spent some time as a strict originalist. But, thinking about the historical role of judges I feel that the sort of originalism propounded by Justice Scalia is a bit farther than I'm willing to go; judges should be (I feel) the wise men of society who can balance the letter and the spirit of the law. That said, I feel law has become troublingly politicized, particularly due to the balkanization of the US Supreme Court and several high profile legislative battles over Federal Circuit appointees.
Same Sex Marriage: Living in MA, having gone to the only gay wedding to which I've been invited (after much inner conflict), I find that my personal acquaintance with the practice has not significantly impacted my feelings about it as far as I can tell.
I believe marriage is a social construct; that its only meaning is what we as a society imbue it with. As such, I do not accept that "equal marriage" is an inherent right. The question I see the point revolving on is whether we as a society want to weaken the construct sufficiently to allow for same sex couples. Historically there have been far less strict interpretations of what "marriage" means; globally there are very different interpretations on what "marriage" means. I'm not too worked up over the possibility of a definitional change. Although individually I oppose it and vote that way, if society chooses to accept it I'm not going to go about wringing my hands.
I do get worked up, however, with any arguments in favor of SSM that assert a "right to marry" or that focus on logistical (i.e. inheritance, hospital visitation, etc.), rather than definitional aspects of marriage. I'm leary of the assertion of "rights" beyond a basic few, and don't see historical or popular support for the assertion of this particular "right." Since the question, to me, is not one of "rights," the procedure calls for legislative deliberation and popular votes to determine the central question of whether homosexual relationships belong to the marriage construct, with all the social acceptance that membership entails. If society does not believe that, then the government has no place dictating an different position.
I feel that the push to legalize SSM through judicial rather than legislative methods is largely an effort to use the power of government as a method to force a change in the social construct, rather than the more appropriate process of legislating to reconcile the government with what the construct has become. I see this particularly in MA where the legal battle became essentially a public relations method for recognition of the validity of same-sex relationships. It was an anti-populist attempt to compel change in the hearts and minds of the populace, which I see as a poor legal precedent.
I disagree both with the MA and CA SSM decisions; in both cases the courts recognized a right that I don't believe exists, i.e. the "right to marry." Precedence appeals to the end of miscegnation (which, IIRC, were part of the written decisions in both state cases) I think are faulty; you could equally well (to my mind) say the refutation of it as a right is established by minimum age laws, cousin (or sibling) laws, or polyandry laws. I don't know if that makes sense, but my point is simply that using an example of expansion (interracial marriage) to assert a right to marry while ignoring examples of contractions (close-relative marriage) is either disingenuous or illogical.
My Political Philosophy: I generally see myself as a classic conservative in the vein of Edmund Burke. This is neither the conservatism of the current Republican Party, nor the individual rights conservatism that Jesse has propounded. It has more to do with an ideological resistance to change, which in my case is coupled with a distrust of pure reason as a basis for policy. I generally believe that policies already in place are wise, and am pessimistic that changes in policy will lead to intended benefits nor that they will avoid unintended negative consequences. I see an inspiration for this in Burke's principles in supporting the American revolution but rejecting the French revolution. In general, I identify more with the "liberal" wing of the Republican party, and view Bush pere as a better president than either Ronald Reagan or Bush fils.
When asked, rather than Republican or Democrat, I usually identify myself as Communitarian. Like Libertarians, Communitarians find themselves on both sides of the two-party split. But instead of a focus on individual rights and liberties (as in Libertarianism), Communitarianism focuses more on our responsibility to our communities. A result of this is that I feel that political decisions should devolve to the most local community capable of addressing the issue adequately. I am a strong proponent of the "representative" part of our representative democracy (I was recently quite disappointed by the MA legislature's decision to award our Electoral votes for PotUS to the winner of the National popular vote in an attempt to make a populist end run around the Electoral College). I think the changes in the federal government enacted by FDR and LBJ were more bad than good, and that we'd be better off pushing most of the responsibilities the federal government assumed over the past 75 years back down to the states and localities, particularly the social safety net (i.e. health care, social security, unemployment, etc.) I feel that administering it at a political level so far removed from community oversight is a recipe for corruption and inefficiency. Ideally I don't think the federal government should do much other than maintain interstate trade (mostly the interstate highway system) and work out foreign relations (including Defense, which has come to mean Offense, which is a whole different issue). Pretty much all other functions should devolve to at least the states if not the localities.
More Merrill Alums: If anyone has contact with other friends from our Helaman Halls days, please feel free to invite them to the symposium. I didn't spend a lot of time tracking down loose ends, but I'd certainly like to see more voices added to our mix. Furthermore, I'd be open to a discussion of extending membership to spouses or other friends who would like to participate.
Constitutional Law: I really enjoyed Christopher's post regarding the Constitution and how it should be interpreted. Based largely on the bad taste in my mouth after the MA SSM decision, which had no basis in law IMO, I spent some time as a strict originalist. But, thinking about the historical role of judges I feel that the sort of originalism propounded by Justice Scalia is a bit farther than I'm willing to go; judges should be (I feel) the wise men of society who can balance the letter and the spirit of the law. That said, I feel law has become troublingly politicized, particularly due to the balkanization of the US Supreme Court and several high profile legislative battles over Federal Circuit appointees.
Same Sex Marriage: Living in MA, having gone to the only gay wedding to which I've been invited (after much inner conflict), I find that my personal acquaintance with the practice has not significantly impacted my feelings about it as far as I can tell.
I believe marriage is a social construct; that its only meaning is what we as a society imbue it with. As such, I do not accept that "equal marriage" is an inherent right. The question I see the point revolving on is whether we as a society want to weaken the construct sufficiently to allow for same sex couples. Historically there have been far less strict interpretations of what "marriage" means; globally there are very different interpretations on what "marriage" means. I'm not too worked up over the possibility of a definitional change. Although individually I oppose it and vote that way, if society chooses to accept it I'm not going to go about wringing my hands.
I do get worked up, however, with any arguments in favor of SSM that assert a "right to marry" or that focus on logistical (i.e. inheritance, hospital visitation, etc.), rather than definitional aspects of marriage. I'm leary of the assertion of "rights" beyond a basic few, and don't see historical or popular support for the assertion of this particular "right." Since the question, to me, is not one of "rights," the procedure calls for legislative deliberation and popular votes to determine the central question of whether homosexual relationships belong to the marriage construct, with all the social acceptance that membership entails. If society does not believe that, then the government has no place dictating an different position.
I feel that the push to legalize SSM through judicial rather than legislative methods is largely an effort to use the power of government as a method to force a change in the social construct, rather than the more appropriate process of legislating to reconcile the government with what the construct has become. I see this particularly in MA where the legal battle became essentially a public relations method for recognition of the validity of same-sex relationships. It was an anti-populist attempt to compel change in the hearts and minds of the populace, which I see as a poor legal precedent.
I disagree both with the MA and CA SSM decisions; in both cases the courts recognized a right that I don't believe exists, i.e. the "right to marry." Precedence appeals to the end of miscegnation (which, IIRC, were part of the written decisions in both state cases) I think are faulty; you could equally well (to my mind) say the refutation of it as a right is established by minimum age laws, cousin (or sibling) laws, or polyandry laws. I don't know if that makes sense, but my point is simply that using an example of expansion (interracial marriage) to assert a right to marry while ignoring examples of contractions (close-relative marriage) is either disingenuous or illogical.
My Political Philosophy: I generally see myself as a classic conservative in the vein of Edmund Burke. This is neither the conservatism of the current Republican Party, nor the individual rights conservatism that Jesse has propounded. It has more to do with an ideological resistance to change, which in my case is coupled with a distrust of pure reason as a basis for policy. I generally believe that policies already in place are wise, and am pessimistic that changes in policy will lead to intended benefits nor that they will avoid unintended negative consequences. I see an inspiration for this in Burke's principles in supporting the American revolution but rejecting the French revolution. In general, I identify more with the "liberal" wing of the Republican party, and view Bush pere as a better president than either Ronald Reagan or Bush fils.
When asked, rather than Republican or Democrat, I usually identify myself as Communitarian. Like Libertarians, Communitarians find themselves on both sides of the two-party split. But instead of a focus on individual rights and liberties (as in Libertarianism), Communitarianism focuses more on our responsibility to our communities. A result of this is that I feel that political decisions should devolve to the most local community capable of addressing the issue adequately. I am a strong proponent of the "representative" part of our representative democracy (I was recently quite disappointed by the MA legislature's decision to award our Electoral votes for PotUS to the winner of the National popular vote in an attempt to make a populist end run around the Electoral College). I think the changes in the federal government enacted by FDR and LBJ were more bad than good, and that we'd be better off pushing most of the responsibilities the federal government assumed over the past 75 years back down to the states and localities, particularly the social safety net (i.e. health care, social security, unemployment, etc.) I feel that administering it at a political level so far removed from community oversight is a recipe for corruption and inefficiency. Ideally I don't think the federal government should do much other than maintain interstate trade (mostly the interstate highway system) and work out foreign relations (including Defense, which has come to mean Offense, which is a whole different issue). Pretty much all other functions should devolve to at least the states if not the localities.
More Merrill Alums: If anyone has contact with other friends from our Helaman Halls days, please feel free to invite them to the symposium. I didn't spend a lot of time tracking down loose ends, but I'd certainly like to see more voices added to our mix. Furthermore, I'd be open to a discussion of extending membership to spouses or other friends who would like to participate.
Monday, July 21, 2008
Ryan and Jesse comments RE: gay marriage
I'm sorry to clog things, but wanted to pull this out of the comments. If I had more time I'd summarize...but copy-paste is so fast!
Ryan said...
Jesse, I find your comments extremely interesting. Thank you very much for sharing. Now, I don’t want to pry, and I’ll understand if you don’t comment, but I’m really interested in this issue as it pertains to the church. It seems to me that the First Presidency has put the weight of their calling into this issue and have evoked very strong and religiously charged language, asking people to devote "time and means" if I remember correctly, to encourage church members to be actively in favor of the marriage amendment in California. What would you do if you were in California? Do you have a moral obligation as a member of a democracy to speak you views, even if they aren’t in agreement with the church? Would publicly speaking those views undermine your commitments to the church? Or do your views make you more likely to view the teachings of church leaders as having a natural, as opposed to a divine, origin? I know I’m trending on delicate ground, but I feel these conversations are important to have somewhere. And this seems to be a group of very intelligent and accomplished people from many fields of study, who seem to have strong faith as well, so it seems like an ideal group of people to help me make sense of things. Just as a side note, I enjoyed reading an extensive interview with the apostle constitutional lawyer/judge, in which he talks of the prophet and the ERA amendment (he said the church couldn’t defend it’s position rationally, only could appeal to revelation), and about disagreeing with church positions, apostasy, etc. http://newsroom.lds.org/ldsnewsroom/eng/news-releases-stories/elder-oaks-interview-transcript-from-pbs-documentary
July 20, 2008 12:02 PM
Jesse said...
I stated above that I believe the court was wrong to decide what they did. I further argued that this is not a question for the courts to decide. I think that is consistent with the church's position. I didn't say anything about my views on a constitutional amendment. I believe the amendment is meant as a check to perceived judicial overreach. I am therefore in agreement with it. I don't view that as inconsistent with what I've said elsewhere. It has seemed to me that, in the past, some leaders of the church have given insufficient thought to my earlier point: even if I personally believe something to be immoral that does not mean the government should force others to act in some way (take drug/alcohol laws for example). I deal with this conflict the way any of you would---through prayer, meditation, scripture study, etc.
July 20, 2008 6:08 PM
Ryan said...
I can sympathize with the feeling that this is judicial over-reach. But if I understand you, you like the California amendment but for a reason that is slightly different from the church's reasoning. Your focus is more on countering the judicial over-reach. I get the impression that if the people vote to strike down the amendment, then you would be at peace with that, because the people have had their say, they have countered a judicial over-reach? When you talk about not forcing people to do the moral thing,I think you're saying that the courts shouldn't force their sense of fairness on others, rather than saying that people shouldn't force their heterosexual values on others? Just trying to understand, because the first time around I got the impression you were talking about the latter, but now I think that you're talking about former.I was in Massachusetts, too, when this was all settled. And reading the newspapers that day I felt a sense of peace that though I was opposed to it, that our elective officials had voted for what they felt was right, and that many of them had struggled with it a lot, and that it appeared that a consensus had been reached. Most people seemed happy about it. I was glad that the constitution process had been followed and that all branches of government had been involved to some extent. I appreciate you're point of prayer and meditation, but there must also be study. I believe there is room in the church for honest differences of opinion, honest questioning, investigative study, and open dialogue. I kind of sympathize with Tennyson, "There lives more faith in honest doubt, Believe me, than in half the creeds." But I really don't want to be a trouble maker about these things, so I won't push the issue. Just thought I would throw something out. I'm still an active church member with hope and belief. But I'm certainly on a journey to understand more. I think my training as a scientist has given me an appetite for asking a lot of annoying questions.
July 20, 2008 9:18 PM
Jesse said...
Ryan-Thanks for your comments and questions. I agree with your thoughts on dissent and active questioning. My only regret is that this is all taking place in the comments---and I'm trying to avoid comment discussion where possible. I'd move it to the main page if I had the time to quickly summarize or something.In any case my "not forcing morals" argument is about both the contexts you mentioned. Courts should interpret the laws as set forth by the constitution and legislation, period. I also am in favor of individual freedom---even if I personally disagree with it. I would not favor laws that restrict individual freedom for moral reasons. A law against homosexual acts, for example, I would not support.I also have to comment on the MA ruling. I disagree with your view that the issue was in any way properly "settled." The legislature delayed the vote until after state elections were held (which indicates that the amendment had broad support) and only voted after the supreme court found them in abdication of their responsibilities under the constitution. The amendment process required a second vote which took place later that year...needed 50 votes to be put before the voters...got 45 votes with 4 absent. My experience with MA politics has not been the least bit favorable---I can think of few more corrupt and less transparent institutions. Polls indicated the amendment would have passed had it been put before the voters.Anyway as I indicated I'm not that worried about the MA ruling...I just wouldn't personally hold it up as a model of the system working correctly.
Ryan said...
Jesse, I find your comments extremely interesting. Thank you very much for sharing. Now, I don’t want to pry, and I’ll understand if you don’t comment, but I’m really interested in this issue as it pertains to the church. It seems to me that the First Presidency has put the weight of their calling into this issue and have evoked very strong and religiously charged language, asking people to devote "time and means" if I remember correctly, to encourage church members to be actively in favor of the marriage amendment in California. What would you do if you were in California? Do you have a moral obligation as a member of a democracy to speak you views, even if they aren’t in agreement with the church? Would publicly speaking those views undermine your commitments to the church? Or do your views make you more likely to view the teachings of church leaders as having a natural, as opposed to a divine, origin? I know I’m trending on delicate ground, but I feel these conversations are important to have somewhere. And this seems to be a group of very intelligent and accomplished people from many fields of study, who seem to have strong faith as well, so it seems like an ideal group of people to help me make sense of things. Just as a side note, I enjoyed reading an extensive interview with the apostle constitutional lawyer/judge, in which he talks of the prophet and the ERA amendment (he said the church couldn’t defend it’s position rationally, only could appeal to revelation), and about disagreeing with church positions, apostasy, etc. http://newsroom.lds.org/ldsnewsroom/eng/news-releases-stories/elder-oaks-interview-transcript-from-pbs-documentary
July 20, 2008 12:02 PM
Jesse said...
I stated above that I believe the court was wrong to decide what they did. I further argued that this is not a question for the courts to decide. I think that is consistent with the church's position. I didn't say anything about my views on a constitutional amendment. I believe the amendment is meant as a check to perceived judicial overreach. I am therefore in agreement with it. I don't view that as inconsistent with what I've said elsewhere. It has seemed to me that, in the past, some leaders of the church have given insufficient thought to my earlier point: even if I personally believe something to be immoral that does not mean the government should force others to act in some way (take drug/alcohol laws for example). I deal with this conflict the way any of you would---through prayer, meditation, scripture study, etc.
July 20, 2008 6:08 PM
Ryan said...
I can sympathize with the feeling that this is judicial over-reach. But if I understand you, you like the California amendment but for a reason that is slightly different from the church's reasoning. Your focus is more on countering the judicial over-reach. I get the impression that if the people vote to strike down the amendment, then you would be at peace with that, because the people have had their say, they have countered a judicial over-reach? When you talk about not forcing people to do the moral thing,I think you're saying that the courts shouldn't force their sense of fairness on others, rather than saying that people shouldn't force their heterosexual values on others? Just trying to understand, because the first time around I got the impression you were talking about the latter, but now I think that you're talking about former.I was in Massachusetts, too, when this was all settled. And reading the newspapers that day I felt a sense of peace that though I was opposed to it, that our elective officials had voted for what they felt was right, and that many of them had struggled with it a lot, and that it appeared that a consensus had been reached. Most people seemed happy about it. I was glad that the constitution process had been followed and that all branches of government had been involved to some extent. I appreciate you're point of prayer and meditation, but there must also be study. I believe there is room in the church for honest differences of opinion, honest questioning, investigative study, and open dialogue. I kind of sympathize with Tennyson, "There lives more faith in honest doubt, Believe me, than in half the creeds." But I really don't want to be a trouble maker about these things, so I won't push the issue. Just thought I would throw something out. I'm still an active church member with hope and belief. But I'm certainly on a journey to understand more. I think my training as a scientist has given me an appetite for asking a lot of annoying questions.
July 20, 2008 9:18 PM
Jesse said...
Ryan-Thanks for your comments and questions. I agree with your thoughts on dissent and active questioning. My only regret is that this is all taking place in the comments---and I'm trying to avoid comment discussion where possible. I'd move it to the main page if I had the time to quickly summarize or something.In any case my "not forcing morals" argument is about both the contexts you mentioned. Courts should interpret the laws as set forth by the constitution and legislation, period. I also am in favor of individual freedom---even if I personally disagree with it. I would not favor laws that restrict individual freedom for moral reasons. A law against homosexual acts, for example, I would not support.I also have to comment on the MA ruling. I disagree with your view that the issue was in any way properly "settled." The legislature delayed the vote until after state elections were held (which indicates that the amendment had broad support) and only voted after the supreme court found them in abdication of their responsibilities under the constitution. The amendment process required a second vote which took place later that year...needed 50 votes to be put before the voters...got 45 votes with 4 absent. My experience with MA politics has not been the least bit favorable---I can think of few more corrupt and less transparent institutions. Polls indicated the amendment would have passed had it been put before the voters.Anyway as I indicated I'm not that worried about the MA ruling...I just wouldn't personally hold it up as a model of the system working correctly.
Sunday, July 20, 2008
Social Conservatism and Gay Marriage
Ryan asked me in a comment to my previous post to explain my not being a "social conservative". The issues he asks about are abortion, gay marriage, birth control, abstinence education. Yes this is what I mean by "social conservative" issues. It would take a book to really describe my views on all these issues, but the brief answer is that I do not believe the government should be involved in most of them. I am as against Mike Huckabee and Harriet Miers (proponents of "social conservative" big government and judicial activism) as I am left-wing judicial activism and big government. Briefly on some issues:
1. Birth control. I'm not sure the "Right to privacy" here was correctly decided. I should read more about it and form a more educated opinion. But in any case I see no reason for the government to be involved here.
2. Abortion. Before "life" begins (life here defined as having rights separate from the mother) this is the same as #1. But of course the government should be involved in infanticide, so it comes down to when this "life" begins. A very hard question. Is it too hard to be left up to 9 unelected judges? Or too hard to be left to the tyranny of the majority? This one will require its own post later.
3. Gay Marriage. Beasley asks below for secular arguments against gay marriage. Mine are secular but only sort of against gay marriage. The question, again, is why is government in the marriage business? How would my life be different if the government recognized no marriages? The only difference is that I would not receive certain benefits the government now provides to married couples---but I would still be married of course. So government is involved because people originally saw a positive externality (here we go again) from marriage and government played a role to maintain/encourage that institution. If that is the case we need to ask whether that externality still makes sense and whether gay marriage generates the same externality. That is an interesting and difficult question. It most certainly is not a "rights" issue---the government does not grant a "right" to marriage, it confers benefits on those contributing a positive externality. It would be fine, for example, for the government to recognize no marriages at all---marriage is not a "right" given you by the government (imagine the government recognizing no one's right to speech or due process...marriage is just not the same). It is totally inappropriate therefore to be decided by the courts. If states believe positive externalities are generated by gay marriages they can encourage them if they want through legislation. But the court cannot find "rights" to things that were never "rights" to begin with. The California court (like my own MA court), seems to view itself as being in the "fairness" business---confusing rulings on which laws are "fair" with which laws violate rights. Marriage laws may be totally unfair to single people---in the same way that income tax laws may be totally unfair to rich people---but these are not "rights" issues for the court to decide.
4. Prayer in school. Government should not be involved.
Ok this is longer than I intended (as usual). I believe in limited government---that applies equally to things I like as it does to things I dislike. This is consistent with my earlier points to Karl on taxation---it is not enough to say "I should not have an abortion" in the same way it is not enough to say "I should help the poor". The question is whether one group of people (the majority, maybe) should force another group of people to do something. Compulsion is the issue here.
By the way I feel I should mention I haven't always been in agreement with church leadership here. The church has involved itself in "moral" issues and encouraged us to do the same. I believe it has sometimes failed to appreciate the distinction above---just because I believe something is immoral does not mean I should force others to act in some way.
And with that I'm off to PEC :)
1. Birth control. I'm not sure the "Right to privacy" here was correctly decided. I should read more about it and form a more educated opinion. But in any case I see no reason for the government to be involved here.
2. Abortion. Before "life" begins (life here defined as having rights separate from the mother) this is the same as #1. But of course the government should be involved in infanticide, so it comes down to when this "life" begins. A very hard question. Is it too hard to be left up to 9 unelected judges? Or too hard to be left to the tyranny of the majority? This one will require its own post later.
3. Gay Marriage. Beasley asks below for secular arguments against gay marriage. Mine are secular but only sort of against gay marriage. The question, again, is why is government in the marriage business? How would my life be different if the government recognized no marriages? The only difference is that I would not receive certain benefits the government now provides to married couples---but I would still be married of course. So government is involved because people originally saw a positive externality (here we go again) from marriage and government played a role to maintain/encourage that institution. If that is the case we need to ask whether that externality still makes sense and whether gay marriage generates the same externality. That is an interesting and difficult question. It most certainly is not a "rights" issue---the government does not grant a "right" to marriage, it confers benefits on those contributing a positive externality. It would be fine, for example, for the government to recognize no marriages at all---marriage is not a "right" given you by the government (imagine the government recognizing no one's right to speech or due process...marriage is just not the same). It is totally inappropriate therefore to be decided by the courts. If states believe positive externalities are generated by gay marriages they can encourage them if they want through legislation. But the court cannot find "rights" to things that were never "rights" to begin with. The California court (like my own MA court), seems to view itself as being in the "fairness" business---confusing rulings on which laws are "fair" with which laws violate rights. Marriage laws may be totally unfair to single people---in the same way that income tax laws may be totally unfair to rich people---but these are not "rights" issues for the court to decide.
4. Prayer in school. Government should not be involved.
Ok this is longer than I intended (as usual). I believe in limited government---that applies equally to things I like as it does to things I dislike. This is consistent with my earlier points to Karl on taxation---it is not enough to say "I should not have an abortion" in the same way it is not enough to say "I should help the poor". The question is whether one group of people (the majority, maybe) should force another group of people to do something. Compulsion is the issue here.
By the way I feel I should mention I haven't always been in agreement with church leadership here. The church has involved itself in "moral" issues and encouraged us to do the same. I believe it has sometimes failed to appreciate the distinction above---just because I believe something is immoral does not mean I should force others to act in some way.
And with that I'm off to PEC :)
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