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Mob rule or oligarchy: I'll take C, none of the above

Last week, over at the World Wide Rant, I got into a bit of a donnybrook over gay marriage. As I have before, I supported it, but with the caveat that it be done the right way -- with the acceptance, if not the support, of enough of the people to sustain it and minimze the inevitable backlash that such a fundamental change in society it would bring.

That wasn't good enough for at least one of the readers there, though -- I was accused of evading the issue, of being secretly against it, while using that as an "excuse" to say I was for gay marriage, without having to actually do anything about it. In fact, Rick's last question was "do you favor mob rule?"

My initial answer was to turn the question right back against Rick -- "so, you believe that four of seven judges, unelected and utterly unaccountable for their actions, should have the right to impose their beliefs on not only an entire state of several million people, but by the application of the Full Faith And Credit Clause of the Constitution, the entire nation?" But Rick and Steve bring up a bigger, more important issue: at what point do we curtail democracy and the will of the people in the interest of protecting the minority?

P. J. O'Rourke, in "Parliament Of Whores," noted that pure democracies tend to last about as long as it takes 51% of the people to realize that they can screw the other 49% with impunity. Further, pure democracies are inherently unmanageable once they pass a certain point -- which is why we are not a pure democracy, but a representative democracy -- or, to use a term that has fallen into bad associations, a "democratic republic."

(These days, it's a good rule of thumb that any nation that has "Democratic Republic" in its name is most likely neither -- it's almost a "secret handshake" for dictators to recognize each other -- another observiation I've stolen, I believe, from Mr. O'Rourke.)

Our system seems to be the best devised so far by man -- a democracy that has certain rights enshrined in the Constitution that can not simply be changed, altered, suspended, revoked, folded, bent, spindled, or mutilated without major, major effort. It would take an amendment to the Constitution to change these, and the founders were wise enough to make the process very demanding and cumbersome. In fact, it has only been done 17 times in two centuries -- and one of them really shouldn't count, as it merely repealed an earlier one.

So the answer is deceptively simple: we are a democracy, with majority rule, but we have determined certain matters are too valuable to subject to public whim, so they require the supermajority and a deliberately obtuse process to affect.

The real tough question is exactly which matters deserve that level of protection, and how do we determine what they are?

I think that the bar for such matters has dropped since the days of the founding fathers, and that has been a mixed blessing. After all, slavery was actually written into the Constitution, and it lasted almost a century before it was finally banned. Likewise the rights of women to vote.

But should gay marriage be escalated to the point where it is beyond the grasp of a simple majority? Does it need that level of protection, and is it so important to protect with such a mighty shield?

Reluctantly, I have to conclude it does not.

Slavery and the franchise are fundamental issues, simple black and white ones. They represent an absolute denial of rights and freedoms -- and as too often neglected, the accompanying responsibilities. There were no alternatives available for slaves and women that let them "work around" these restrictions.

As far as gay couples go, it's not anywhere near as serious an issue. No, the government will not certify your union for you, declaring its validity for all to see. And no, they will not grant you the rights and benefits accorded to heterosexual couples.

But that isn't the end. There are ways to secure these rights and benefits without benefit of marriage. Most big companies offer "domestic partner" benefits these days. Medical issues, such as visitation rights and decision-making authority, can be handled through a Durable Power Of Attorney. Inheritance is resolved with a simple will.

No, not all benefits are as easily managed. But a lot more are, and those that aren't can be covered by "Domestic Union" bills, passed by the individual states -- where the authority to govern marriage currently resides.

So, to answer Rick and Steve, yes, I do support gay marriage. And I'm not changing my mind, no matter how much of jerks you are towards me. But I simply don't give it anywhere near the priority you do, and I don't put it on the same level as slavery or disenfranchisement.

All I ask is an opportunity to put deeds to words. Put forth a legal measure that legalizes gay marriage, and I'll argue for it. I'll support it. I'll write lenghty pieces in favor of it. I might even demonstrate for it and carry signs and put on bumper stickers for it. (Note to self: look for a "straight, but not narrow") bumper sticker.) Give me a petition to sign. And let me cast my vote proudly in favor of it.

But don't expect me to be happy at yet another instance of bare majority of judges deciding that instead of interpreting law, they want to start writing law instead. That's against both the spirit and letter of our Constitution, and I cannot support it.


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Comments (34)

Jay, Jay, Jay... separate ... (Below threshold)
Omni:

Jay, Jay, Jay... separate but equal NEVER works!!!

I think that New Zealand's gov't has one thing superior to ours; anyone who can get a certain # of votes from the people of the country as a whole can serve in their parliament, which means that minorities of all sorts can have representation proportional to their #'s... whereas in America, minorities need a majority vote somewhere in order to get someone elected, which is VERY hard to do most of the time. If 10% of congress was gay, imagine what a difference that'd make to gay rights; we're not gonna see that any time soon in America, of course, so we have to look for the best alternative to expecting them to obtain rights on their own.

I'm VERY hesitant about suggesting governmental action contrary to the will of the people, because there's alot of gray area and it's a slippery slope... but if you think about it, we don't need to do that to make a fair set-up for all involved.

Marriage is one place where we have close connection between church and state in this country; it's a religious institution that the gov't has regulated and created a parallel to that's interchangeable with it... but WHY? Why not have marriage-R, performed by religious authorities such as priests and rabbis upon whomever they choose, and marriage-J, legally identical in ALL ways, performed by justices of the peace on ANY 2 consenting adults, not just gays but ANYONE who doesn't want their union to be connected to the religious patriarchy?

This avoids the separate but equal problem, because LOTS of sorts of people would go for marriage-J; those with no religious affiliation, those eager to be seen as supporting gays (especially the Hollywood types), the young and rebellious, nonconformists, lovers of the new and novel, swarms of liberals, true conservatives who love equality (and aren't too religious)... and if you let people who are already married re-do their vows and change their marital status to marriage-J, floods of people would do it... including my husband and I. (Think of the $ this would earn for the states.)

The religious folks wouldn't have to suffer whatever their issue is with having gays have something called exactly what their marriages are called, and gays could have a REAL marriage, just like plenty of straights would have. :-)

(Click here for more opinionated rants)

Maybe I'm just a bit crazy,... (Below threshold)

Maybe I'm just a bit crazy, but my copy of the constitution has 27 amendments, not 17.

"There are ways to secure t... (Below threshold)
hecate:

"There are ways to secure these rights and benefits without benefit of marriage."

I'm a 44 year old British gay female. My partner of 8 years is an american. Can you explain to me how I can get the right to live in America with my partner as any other couple can?

I'm excited about your pron... (Below threshold)
Benjamin Barrett:

I'm excited about your pronouncements that the rights guaranteed to married couples by the federal government can be secured by other means.

How can gay people go about getting the rights of my partner from a foreign country to get a green card? (Heterosexuals do it all the time.)

How do gay people make sure their partner can't be forced to testify against them in court?

Oh, and how about inheritance? What's the really easy method to transfer property at a gay person's death to the other partner while avoiding taxes (re New Jersey)? According to your theory, all these should be covered by Massachusetts, where same-sex marriages are legal.

I anxiously await your simple answers to these problems that cause gay people so much stress these days in the Land of the Free.

Mine has 27, too, Daniel. B... (Below threshold)
Jay Tea:

Mine has 27, too, Daniel. But the first 10 were passed with the Constitution; I was referring to the effort to pass an amendment after that point -- which has only happened 17 times.

J.

One of the best suggestions... (Below threshold)

One of the best suggestions I've heard for the "how do I?" questions above is a bit odd, and I'm sure some lawyers need to chew this one over, but...

Form a business partnership. Incorporate. Make it a 50/50 split. If there are children involved, make them nonvoting partners (with a share in the "profits" or as beneficiaries of a trust).

I'd prefer this for hetero partnerships, as well. Keep government out of the spiritual part of marriage, and keep the monetary part clean and (most of all) documented.

For immigration, the incoming partner has an established business (never mind that it doesn't make money per se, neither do a lot of businesses). No, I don't think the "get married and automatically get citizenship" thing is right, either.

Avoiding taxes? We're trying to get that one worked out for straights (why should any government take a piece of my estate, when everything in it has been taxed before?). Why should you get the free transfer of wealth to your partner, when I (as a single guy) can't get a free transfer of my wealth to someone I happen to like?

As far as the "can't be forced to testify" bit, I don't think that should be a privilege, anyway. If you have knowledge of a crime your partner committed, you should take the Fifth (if you're really partners, you're really accessories after the fact, or your partner screwed you over by doing the cime in the first place).


If 10% of congress was g... (Below threshold)
JohnAnnArbor:

If 10% of congress was gay, imagine what a difference that'd make to gay rights;

So your scheme would lead to overrepresentation for gays?

Because that 10% came from the thoroughly discredited Kinsey, I believe.

Representative government i... (Below threshold)
Leslie:

Representative government is a state legislature passing into law marriage for gay men and lesbians, only to be vetoed by a govenor?

Why should marriage rise to constitutional protection? We already have domestic partnerships in California, but can only travel to three other states.

Some people are born as women, some people with dark skin, and some people, gay. Get over it.

"For immigration, the incom... (Below threshold)
hecate:

"For immigration, the incoming partner has an established business (never mind that it doesn't make money per se, neither do a lot of businesses). No, I don't think the "get married and automatically get citizenship" thing is right, either."

Doesn't work since you have to be able to show funds to pay the employee. Plus not everyone can live without getting a paycheck and it happens to be illegal and can get you kicked out of the country.

Omni: Separate but equal? ... (Below threshold)
Jim Price:

Omni: Separate but equal? Think you got that one backwards. Gay folks already have the same right to marry as straight folks. Gay folks just don't like the laws, and want special changes for themselves. The minute you change the fundamental basis of marriage (like say, the whole gender oposite thing), it's no longer marriage. That's like changing purple to include orange, and expecting it to still mean purple. Since gays want a totally different institution, why don't they just create one? Why must they continue irritating everyone around them with what comes off as a low-B-grade-acting-level of ignorance?

Leslie: You forgot one: Some people are born with a curious inability to be honest about certain issues in which they hold a strong personal bias.

Benjamin: Have you no imagination? When I want something, I find a path to it- even if I have to go through you or anyone else to get it. Let them go after what they want with a little creativity and passion...or perhaps they didn't really want it after all- or suspected it really wasn't worth the effort.

I recommend reading "An Unc... (Below threshold)

I recommend reading "An Uncivil War" by Micahel Lebedoff. Although he overgeneralizes the "New Elite," he correctly identifies many of the anti-majoritarian trends in the U.S. today. Chief among these is to take advantage of activist courts to change the rules of the game.

Having studied Supreme Court decisions once upon a time, I can recall justicies opining that the case in question "is a political one, and should be decided by the Legislative branch," i.e.: the people themselves should decide through their elected representatives.

After a half-century of activists courts, one can almost not concieve of a Supreme Court saying that today. They'd be accused of cowardice by both sides of any given question, even though they are quite right. And that's what disturbs me about this entire debate; Wizbang has finally identified the correct question here: Not "How should the courts decide this issue?" but "Should the courts decide this issue at all?"

How long did it take suffregettes (sp?) to win their cause? (Politically, I might add.) Or are both sides so convinced of their moral (as opposed to strictly religious) certitude that they must continue short-cutting the political process?

Hmmmm.But... (Below threshold)
ed:

Hmmmm.

But Rick and Steve bring up a bigger, more important issue: at what point do we curtail democracy and the will of the people in the interest of protecting the minority?

Never.

Hmmm.There is noth... (Below threshold)
ed:

Hmmm.

There is nothing that a majority must offer a self-described minority.

Just because you identify yourself as a group and claim rights, doesn't mean that anybody has to recognize them. The way you do get recognized is by convincing the majority that your cause is right and that your self-described status is acceptable.

Judicial fiat is simply not acceptable. And if you're unwilling to go through the time and effort of convincing the majority then any such recognition that is offered is nothing but a sham and will soon be refuted.

And that is the current state of "gay marriage" in America. A judicial fiat and a sham soon to be refuted.

Oppressed minority? What a laugh.

What gets me on this gay ma... (Below threshold)
jhow66:

What gets me on this gay marriage thing is how do you tell the "mommy" from the "daddy"?

In response to the 27 amend... (Below threshold)
jdavenport:

In response to the 27 amendments posts

The first ten amendments, the Bill of Rights, was a compromise to get the constitution ratified.

The other 17 amendments were done outside of the original negotiation framework.

AFA gay marriage... it is not a franchise issue, and it is not a structural issue necessary for the maintainence of a constitutional republic, therefore, it the issue belongs in the hands of the people.

Furthermore, IMO, the Bill of Rights is less important that the structure of checks and balances and enumerated federal powers, for the maintainence of liberty.

Lefties that don't like emumerated powers, and like judicial supremacy, are not looking at the big picture. Let states compete in the granting of rights, and rights will be secure, because liberty is more powerful than oppression.

Oppression almost always happens from over centralization.

Separate but equal? Thin... (Below threshold)
andy:

Separate but equal? Think you got that one backwards. Gay folks already have the same right to marry as straight folks. Gay folks just don't like the laws, and want special changes for themselves.

Not to point out the obvious (to those with functioning brains), but that's the same idiotic argument one could have made against allowing mixed marriages. Hey, everyone has the right to marry someone of their own race, so everyone is equal!

If this is what passes for "critical thought" in the anti-gay community, then I suspect Intelligent Design is also rather popular in it.

Andy - bullshit. And you k... (Below threshold)
JD:

Andy - bullshit. And you know it.

The fact of the matter is that those who choose to, er, practice procreation with someone of their own gender have the absolute right to marry, with certain conditions which are set forth in the body of family law for all 50 individual states. Most of those conditions can be summarized as follows:
1) Over the age of consent depending on the jurisdiction;
2) Not a first-degree relative.
3) Opposite gender.

These conditions are set forth in law as voted by the various legislative bodies of the several states. Those that do not like those laws are at their liberty to attempt to change them by the normal means in their states. Were they unable to do so, then they could tackle the issue via constitutional amendment.

The suffragettes were equal to win the right for women to vote in federal elections via the passage of the 19th amendment - i.e., two-thirds of both houses of Congress and three-quarters of the Several States.

Slavery was done away with in the same fashion, in 1865 via passage of the 13th amendment - although passage of that amendment was a condition for readmission to the Union, and MS held out on passage of the 13th until 1995.

If there is popular groundswell for gay marriage, then it will manifest itself. It has not done so. In fact, as Jay has asserted, the reverse has taken hold instead. In fact, each and every time gay marriage comes up for popular vote, it goes down in flames, and not just in red states either (Oregon and California being the most blue).

Jerking around with societal norms is not something to be done via judicial fiat. All of the civil rights reforms of the 1960s had the backing of existing law. Gay marriage simply does not, nor does it rise to the level of "inalienable rights" like its supporters contend.

Andy - bullshit. And you... (Below threshold)
andy:

Andy - bullshit. And you know it.

No, really, the argument is the same. You may not like the implications of it, and you may disagree with how one or the other issue is handled, but that doesn't change the fact that blacks and whites had the same rights when it came to marriage: they could marry someone of their own race.

My point was not that that is an argument in favor of gay marriage, but that it is not a good argument against it.

Yeah, Andy, it's exactly th... (Below threshold)

Yeah, Andy, it's exactly the same. Or, it will be, as soon as we find that "Gay/Straight" gene.

One piece of unrefuted scientific proof that "gay" or "straight" is part of the genetic program, rather than a psychological construction is all it takes.

The real problem lies within the concept that our rights must be defined within the Constitution. The founders intended the provisions of the Constitution to be strict limitations placed upon a potentially tyrannical central government, with a presupposition that individual rights belonged inherently to the individual; rights not to be infringed upon except in the specific cases such as were set forth and agreed upon within the Constitution that would be ceded to the government, and only for the particular purposes set forth within that document. The assumption now has become that save for the particular rights and freedoms that can be gleaned from the Constitution, the central government holds all power over every individual. It's a complete reversal of the proper understanding of the document's intent, and it will only lead to more tyrannical behaviour by the government.

This, abortion, and a myriad of other decisions, are best left to the several states, and to the people. Period. What "greater good" is served to the union and to its constituency when the federal government, through oligarchial mandates, issues decrees as to what the states' dispositions of such matters shall be?

Yeah, Andy, it's exactly... (Below threshold)
andy:

Yeah, Andy, it's exactly the same. Or, it will be, as soon as we find that "Gay/Straight" gene.

No, the logic of the comparison isn't contingent upon any such thing. Nothing within the argument indicates the necessity of genetic predisposition toward race, sexual orientation, or a love of chocolate cake.

Again, there are arguments to be made against gay marriage, I just don't think the ones I've heard are very good - and the "they have the same rights as everyone else" argument is particularly poor with obvious flaws.

Have a nice day.

Some people are... (Below threshold)
kbiel:
Some people are born as women, some people with dark skin, and some people, gay. Get over it.

Nice assertion, care to back it up with facts? Of all the scientific evidence I have seen, the closest anyone has be able to show a physical cause for homosexuality is brain structure. Yet, they can not account for how that brain structure came to be, whether it is genetics or environment or some combination thereof.

Beside the lack of evidence, claiming that some people are born gay does not change the fact that it is a behavior and not an unchangable physical attribute like skin pigmentation.

Most researchers agree that there is a genetic predispostion towards alcoholism. By your argument, we should be looking into changing our laws to accomodate their behavior since they are who they are.

Any argument you can make f... (Below threshold)
Les Nessman:

Any argument you can make for allowing gay marriage can be used to allow polygamy.

Most researchers a... (Below threshold)
kbiel:
Most researchers agree that there is a genetic predispostion towards alcoholism. By your argument, we should be looking into changing our laws to accomodate their behavior since they are who they are.

Please allow me to restate that with what I meant to say:

Most researchers agree that there is a genetic predispostion towards alcoholism in most alcoholics. By your argument, the courts should recognize their right to drink and nullify any law that restricts their right to drink.
Hecate, you can apply for l... (Below threshold)

Hecate, you can apply for legal status to live here, or, if you want, become a citizen.

I'm just going to comment t... (Below threshold)

I'm just going to comment this time to answer a few questions.....

First, NO ONE is FORCED to testify to anything, you can simply "plead the fifth" or JUST REFUSE TO ANSWER!

Next, as to the "legislature passing a law only to be vetoed by the Governor", if the will of the people is that they DO NOT want that law, then yes it was, if they did, they can petition for a redress of their grievances, or to recall and get a Governor who will work FOR them.

Lastly, just a thought, but IF the "10%" number is correct, should ONLY TEN PERCENT of the country's population be allowed to FORCE their will on the other NINETY PERCENT? I'll even grant you up to THIRTY PERCENT support, which puts 40% supporting the idea, but still does not mean a majority. So, should a MINORITY (numbers wise) be able to FORCE THEIR VIEWS and/or WILL/DESIRES on the MAJORITY?

Unrelated example - if 10% of the country's population supported being able to have sex with children (see - nambla, and I don't grant them 10% either), should they be able to FORCE the rest of the country to accpept (and also support it, as a law would support as well as accept it)? Do you think that they have the "right" to live as they see fit?

I agree, this is a bit more extreme of an issue than gay marriage, but still kind of fits, as a small minority are trying (via the courts, with the help of the aclu-all crazy lunatics union) to FORCE their desires and ideas on the people.

BTW - don't take this to a ... (Below threshold)

BTW - don't take this to a nambla debate, I was just giving an example, although I wish an eternity in hell on nambla types, but not on gay people.

Andy, you said Not to po... (Below threshold)
Jim Price:

Andy, you said Not to point out the obvious (to those with functioning brains), but that's the same idiotic argument one could have made against allowing mixed marriages.

That's exactly what I mean when I rant about folks trying to pass off stupidity as sincerity.

Off course the push against mixed marriages was discrimination- and totally reprehensible. But what you fail (purposefully, I'm sure, so here's the acting stupid part)to acknowledge is that it wasn't a question of gender in that fight...it was race.

The minute you can substantiate that desiring to shack up with the same gender amounts to creating a new "race", then you might have a leg to stand on. Otherwise, your point is ridiculous on it's face, everyone with a functioning brain knows it, and you invite the masses to think of you as less than intelligent- or just plain arrogant for thinking you can fool otherwise sane individuals with this horrible comparison.

And shame on proponents of this argument for trying to "borrow it" in the face of many people who really suffered during that sad time in our history.

Jim -As I said, I ... (Below threshold)
andy:

Jim -

As I said, I was more pointing out that the argument is a poor argument against rather than a good argument for. Perhaps subtle distinctions escape some folks, so we'll let it slide.

Smokey -

I wondered how long it would take, but thank you for violating Andy's Law. Well done. Get a clue.

I wasn't aware that I compa... (Below threshold)

I wasn't aware that I compared to nazis or hitler.

What I pointed out is that a MINORITY has no "right" to DICTATE to the MAJORITY how society will "grow".

Hmmm.Not ... (Below threshold)
ed:

Hmmm.

Not to point out the obvious (to those with functioning brains), but that's the same idiotic argument one could have made against allowing mixed marriages. Hey, everyone has the right to marry someone of their own race, so everyone is equal!

And, again, the proponents of mixed-marriages convinced the majority that their cause was right and just and the majority changed the law of the land to accomodate them.

Mixed-marriages= change by convincing the majority.

Gay marriage= judicial fiat.

And which of these two are universally acknowledged? There's a clue for you.

Careful Ed, you're almost t... (Below threshold)

Careful Ed, you're almost trying to use LOGIC here, and that can be dangerous!

Smokey:"First, NO ... (Below threshold)
Denny Crane:

Smokey:

"First, NO ONE is FORCED to testify to anything, you can simply "plead the fifth" or JUST REFUSE TO ANSWER!"

Huh? An innocent spouse or same sex partner cannot "plead the fifth." More importantly, refusing to answer results in a finding of contempt and jail time. The spousal privilege is a very important tenet of evidence law.

kbiel:

"Beside the lack of evidence, claiming that some people are born gay does not change the fact that it is a behavior and not an unchangable physical attribute like skin pigmentation."

What's more changeable? --sexual preference or religion? People swap religions far more readily than sexual preferences, yet religion is protected. The concept of immutability is helpful to your argument, but far from determinative.

JD:

"Jerking around with societal norms is not something to be done via judicial fiat. All of the civil rights reforms of the 1960s had the backing of existing law."

Yep, they had the backing of Brown v. Board of Education, a 1954 case that you would undoubtedly denounce as "judicial fiat."

It's great to see Jay enable this encore of Homophobes on Parade. If there is to be another episode, could you announce it with sufficient lead time for the homophobes to brush up on their logic and history?

Since I did bring up the "n... (Below threshold)

Since I did bring up the "nambla issue", Andy, are you in support of children being able to consent to being abused?

And, since there are "age of consent" laws, wouldn't any sexual relations with someone under that age be deemed illegal?

Jim Price:"Separat... (Below threshold)
Denny Crane:

Jim Price:

"Separate but equal? Think you got that one backwards. Gay folks already have the same right to marry as straight folks. Gay folks just don't like the laws, and want special changes for themselves."

Hmm, and before Brown v. Board, blacks had the same right to patronize same-race eating establishments, just as white people.

I'd like to hear more about these "special changes," and how they would affect someone like you. What do YOU have to lose? --absolutely nothing. What do gay people stand to gain? Equality.




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