A Weblog of Centrist Voices in American Politics
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A Weblog of Centrist Voices in American Politics | |
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November 23, 2004Conservatives like courtrooms tooAlthough Rick pointed out in his post here the damage done to Democrats by constitutional litigation attributed to them (rightly or not), liberal-side litigation isn't the only litigation out there. By way of example, James J. Kilpatrick mentions here that conservatives are challenging the Massachusetts Supreme Judicial Court ruling in Goodridge v. Dep't of Public Health (a/k/a "the gay marriage case") before the Supreme Court of the United States. "But wait!" you cry. "Goodridge was decided on state law! Surely there's no federal question!" Well, that would be a well-grounded assumption, but the conservatives are re-opening the Guarantee Clause door. For those fortunate enough to have escaped law school and Constitutional Law, the Guarantee Clause is housed in Article IV, Sec. 4: "The United States shall guarantee to every state in this Union a republican form of government. . . ." Now, long, long ago, in a place far, far away, the Supreme Court of the United States determined in Luther v. Borden, 48 U.S. (7 How.) 1 (1849) that the Guarantee Clause is largely non-justiciable--that the political branches of government are obliged to enforce it, not the courts. Nevertheless, conservatives would like the Court to find that the Supreme Judicial Court usurped the role of the Mass. General Assembly, thereby unconstitutionally undermining republican government. This is not an isolated incident--well, at least it may not be soon. Adam Liptak at the NY Times suggests in this article about the new law school at Jerry Falwell's Liberty University that newly minted socially conservative lawyers may be coached into challenging Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938). Without turning this into an inside joke for lawyers, Erie, another bedrock case, generally established that federal courts have to use state law in diversity jurisdiction cases. I bring this up only to point out the conflict between federalist conservatives and social conservatives--the former would prefer reliance on state law. For those of us who take great comfort in the legal principle of stare decisis and the reliability and stability of law in our country, this emerging trend would not be overly troubling if not for the disregard some of the president's potential SCOTUS picks have for stare decisis. For more, check Jeffrey Rosen's piece in The New Republic on strict constructionism here Posted by The Jaded JD at November 23, 2004 12:01 AMComments
Why Gay Marriage Activists Should Have Listened To Thomas Jefferson Gay Marriage activists took a bad blow this past election cycle. Eleven states passed Constitutional Amendments defining marriage and denying couples that do not meet that criteria the benefits of marriage. Why did this happen? Read the following statements from Thomas Jefferson and think about how liberal America has tried to advance Gay Marriage for the past 3 years.
Judges who declared gay marriage protected under the constitution, did no favors to the movement in the end. They may have brought lasting harm to the movement in a number of states. "Reformation in government follows reformation in opinion." --Thomas Jefferson to Richard Price, 1789. ME 7:366, Papers 15:138 This is a government of the people, for the people and by the people. Using the government to force reform is not in line with the American democratic system. In fact, without first reforming opinion, it appears only as oppressive actions of an authoritarian government upon those yet to be persuaded. "[If] a positive declaration of some essential rights could not be obtained in the requisite latitude, [the] answer [is], Half a loaf is better than no bread. If we cannot secure all our rights, let us secure what we can." --Thomas Jefferson to James Madison, 1789. ME 7:310 The political system is a slow beast, and for good reason. In this instance, liberal America did not try to slowly work on changing ideas and making small advances. If they would have been happy with half a loaf now, this backlash would have been unlikely. Now, we may have no bread. Patience is no longer a virtue in our society, a sad, but true statement about the way our generation thinks today. "Circumstances sometimes require, that rights the most unquestionable should be advanced with delicacy." --Thomas Jefferson to William Short, 1791. ME 8:219 Besides being impatient and expecting everything now. Our generation today seems to not understand delicacy. Gay marriage is an extremely delicate subject. If it had been dealt with delicately, then slow advances may have been made. Examine the slow yet steady success of the Medical Marijuana movement. Within the past 4 years, eleven states have adopted laws protecting patients who take marijuana for medical reasons. A number of other states narrowly missed passage of similar bills, but the gap shrinks with each voting cycle.
I think that sums things up nicely. Will the Liberals listen to the wisdom of the author of the Declaration of Independence? Probably not... Ratatosk, Squirrel of Discord POEE of The Great Googlie Mooglie Cabal Posted by: Ratatosk, Squirrel of Discord at November 23, 2004 01:34 PM"Judges who declared gay marriage protected under the constitution, did no favors to the movement in the end." Ratatosk (do I have that right?), I agree with the general gist of your comment. However, I must say it's not the role of a judge to do or not do favors for the movement. The judge's role is to decide the case in front of him or her. I certainly don't believe that a judge's background and predilictions influence their decisions, but they really shouldn't be trying to decide how a particular decision will influence the movement. Especially in this case, when it was a state court; it wasn't the state court's job to worry about what the impact of the decision would be nationwide. Posted by: MWS at November 23, 2004 03:24 PMMWS, Indeed, the fault really lies with the people who forced the issue into the courts to begin with, instead of working through the legislative process. Ratatosk, Squirrel of Discordx Posted by: Ratatosk, Squirrel of Discord at November 24, 2004 01:10 PMWhen someone doesn't distinguish between civil unions and marriage, you know they have an ax to grind. It's like reading the WSJ on immigration, where they fail to make a distinction between legal vs. ILLEGAL immigration. The legal benefits of "marriage" come from the civil law - NOT any religious institution. Hence, the possibility of being married without ever having to step inside a church or having a minister conduct a ceremony. Churches SHOULD NOT be required to MARRY same-sex couples. However, the civil law should be upgraded to recognize civil unions of same-sex couples, which would give them all the legal benefits of heterosexual unions. If churches want to go on refusing to perform religious ceremonies for same-sex couples, that is their right. I'll give $100 to the first proponent of the "Federal Marriage Amendment" (FMA) who demonstrates to me how recognizing same-sex civil unions is a danger to "traditional marriage"; and how such recognition would bring an end to civilization as we know it. Posted by: Don T. Know at November 24, 2004 08:38 PMDon T. Know, I agree that Civil Unions and Cannon Marriages should be equal in the eyes of the Law, and different only in the eyes of the Church. However, we aren't simply dealing with logical legal vs. religious issues here. We're dealing with centuries of Dogma. We must change the way people think, before we modify the law. This is a democracy and forgetting the People leads to, well... what happened on Nov 2. What needs to happen is a grass roots movement in each State to create "Civil Unions for any couple regardless of sexual preference" on the ballot, then let the citizens of that State vote. Some places will pass, some will fail, and thats OK because this is America. If a couple wants the protections of legal union, then they can move to States that support the idea. If some fundamentalist is violently opposed to the idea, they can move to a State that doesn't support the idea. The political process in America works. There can be 50 flavors of freedom, with each State actually ruled by the people of that State. It takes time, energy and truly hard work, but anything important enough to pass laws about should be worth the time, energy and hard work. Ratatosk, Squirrel of Discord POEE of The Great Googlie Mooglie Cabal Posted by: Ratatosk at November 25, 2004 12:19 PM |
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