I have to admit, during our stop and go, weekend-long brawl over judicial philosophy, HP did catch Myke on an ideological inconsistency. For reasons we’ve already gone over a thousand times, Myke and I are both for the federal legalization of gay marriage. We see it as a civil right – any two people who love each other should be able to profess their love in a federal contract and gain the “privileges” that come with it. Especially since it does no harm to anyone else.
But HP said, “well then incest between two consenting adults should be made legal too.”
“Nah man, that’s just nasty,” Myke said in his Southern drawl. But what he didn’t get is that – even though they’d never admit it – most people against gay marriage also think that romance between two people of the same sex (and especially two men) is “just nasty.”
HP’s right. Incest between two consenting adults really doesn’t hurt anyone else so long as they don’t have kids. But as a society we’ve decided it’s still not ok. We’ve decided it goes against our morals. (and personally, I have to agree with Myke, shit seems nasty). On gay marriage though, we’re more divided. Much of the country is passionately for it and just as many are passionately against it. So what do we do as a nation to work out our differences?
I think I’ve come to agree with HP – we either need a one time vote by the entire country or we need to leave it up to the states to decide until it’s more clear if, as a nation, we agree that marriage should be more encompassing. It’s worth pointing out though that both HP and Myke’s views on gay marriage have their inconsistencies: Myke thinks marriage should be defined by love, but excludes incest because “that’s nasty,” while HP says the purpose of marriage is makin’ babies, but he’s willing to grant it to two 70-year-olds who never could.
While on our ride down to TJ, one of the excellent podcasts I listened to was an NewsHour with Jim Lehrer show that went over, step by step, the deliberations on John Roberts’ first supreme court case. At issue is whether or not the federal government has a right to step in and prevent Oregonian doctors from administering assisted-suicide medication to their patients after Oregon voters passed a right-to-die measure by ballot initiative in 1994, then again by large majority in 1997. Just like Roe V. Wade, the artichoke heart of the case is whether or not it’s up to the state or federal government to codify our collective moral code. Like William F. Buckley Jr says:
if the Supreme Court rules that Washington does not have the authority under existing legislation to interfere with the judgment of the voters of individual states, will this precipitate similar action in other states? California, which is deliberating assisted suicide, is watching keenly the Supreme Court deliberations.
The irony is that most people who are pro-right-to-die (like myself) are also pro-choice. So on the one hand, we are arguing that it should be left to the state to decide if doctors can assist in end-of-life suicides, yet on the other hand we want the federal government to ensure the right to an abortion, fully aware that some states (“Welcome to Alabama, set your clocks back 20 years”) would overturn the law forcing poor young women to travel to other states to perform the operation. The word for that is hypocrisy.
Does anyone like Harriet Miers? Poor lady. Democrats say she’s a crony. Republicans say she’s a moderate. And the authors of this weblog, shallow souls, say she’s ugly. Every day it seems to be getting worse. Whoever does the dot matrix sketches for the Wall Street Journal must’ve been feeling some sympathy when he or she shaved at least 15 years from Miers’ portrait on Friday’s front page article about her work on a 2000 case arguing that Dick Cheney was not a Texan.
Sounds obscure, I know, which is probably why we never heard about it, but while the supreme court was deciding our next president, a federal judge in Dallas listened to the arguments of Jones v. Bush where Ms. Miers (I love how the WSJ still use Miss, Ms., Mrs., and Mr.) convinced the Reagan-appointed judge to take a “broad and inclusive” reading of the constitution. Specifically, the 12th amendment, which prohibits a president and vice-president from the same state. (both Bush and Cheney were living in Texas, had Texas drivers licenses, worked in Texas, and had cars registered in Texas).
Now, despite my disdain for monkeyboy, I wholeheartedly agree with the Miers team that it no longer matters if a president and vice-president come from the same state. Remember, this is America where we only vote for rich people with houses all over the country (Cheney had four houses when he was asked to run as VP) so it’s inevitable that two rich people are gonna have some real estate overlap. But the important part here is that Miers aggressively argued that the constitution needs to be read within the context of contemporary times. Which is something conservatives, so little imagination, don’t want to hear.
White House spokeswoman Dana Perino said on Thursday: “Arguments an attorney makes on behalf of a client do not necessarily reflect how one would rule as a judge.” True, but will Miers remember that she’s no longer arguing on behalf of client Bush when on the Supreme Court? That’s what skeptics on the left are wondering. On the right, they want to know if she’ll revert to “broad and inclusive” readings of the constitution after her jefe leaves the White House.
What all of this really means to me is that nearly 2500 years after Western democracy got started, we’re still fine-tuning and tweaking things. “Judicial activism” has taken on a negative connotation, yet it was judicial activism which pushed through many of the 1960’s civil rights reforms that would’ve never had a chance in the legislative process. 40 years later, as a country, we’re thankful that our supreme court stuck its neck out. Isn’t it at least plausible that we would feel the same way about the legalization of gay marriage 40 years from now?
Yet on the other hand. Judicial activism is inherently anti-democratic. Honestly, how much influence are you going to have on whether Miers gets confirmed or not? Yet her one vote could make abortion illegal in your state. A couple weeks ago Elena Mary sent me an article from the Economist about a federal judge in Argentina who was being very active:
Roberto Gallardo, a controversial local judge, has once again clashed with local officials by ruling that they must subsidise some of the city’s poorest families. Mr Gallardo ordered the city to pay around $70 a month for each child of the city’s cartoneros—the scavengers who recycle the city’s rubbish for a living—as long as the child attends school rather than work alongside his parents. Some legal experts accused Mr Gallardo of trying to dictate social policy, which should be left to elected leaders. But others argued that the judge was merely forcing the city to obey its constitution, which guarantees “food, housing, work, education, clothing, culture and environment” to all inhabitants.
I agree with all of that policy, but do we really want appointed officials making that sort of policy instead of democratic voters? That sounds a little bit like Fascism to me. I eagerly await the input of our advisory legal counsel: abo and bobbo.
Wow … it’s 2:12 and I could swear we just had an earthquake … anyone else feel that?
Let me contribute an anthropological perspective to the marriage issue.
While conservatives would like you to think that marriage is universally defined as something between one man and one woman, that is simply not the case as evidenced by ethnographic research around the world.
The incest taboo is, however, found across pretty much all cultures. Why?
1. The need for genetic diversity.
2. The need to avoid in family conflict.
3. The need to strengthen social networks beyond the immediate family.
Moreover, I think the comparison is not an adequate one, unless you believe homosexuality to be a choice (which I don’t). The incest taboo analogy would work better as an argument in favor of anti-mysagenation laws (but I doubt any of your readers would argue in favor of that one)
That said, I would not have a problem with siblings pairing up as long as there was certainty that no offspring would come out of the union (my objection would be the genetic issues that would result in the children).
I might add that I live in Massachusetts and I can say that allowing homosexuals to marry here has in no way changed my marriage. But I am pleased to see more happy couples living in marital bliss.
I think if you were really interested in strengthening the institution of marriage, you should make it much more difficult to get married. I think gays who can get married probably respect the institution of marriage much more than most heterosexuals just because thay have struggled to obtain it (similar to those who immigrate here from places where they can’t vote value the abilitiy to vote than those who take it for granted because they have always have had the vote).
As for cultural changes, they can happen very quickly and they cannot happen at all. Conservatives were predicting cultural doom as a result of the Civil Rights changes in 1965, especially by striking down anti-mysagenation laws. There have been changes for the better as a result of those laws, a lot of things have not changed, and I really cannot think of too many things getting worse.
And HP, you say polygamy as if it were a bad thing…many cultures have polygyny and polyandry because it works effectively there. Would it work here? Probably not.
Yeah! I felt that one. My La-Z-Boy was equipoised just between “rock” and “roll”, and it jiggled backand forth.
On “gay marriage”, I object to yet another narrow special interest group usurping a perfectly good word with an agreed-upon definition. I don’t care what they DO, just don’t call it “marriage”! And equating “gay marriage” (a relationship) with incest (a sex act)–well, THAT’S just NASTY!
I love how your legal experts have names like abo and bobbo. Wonderful.
No earthquake was felt in SF, but that’s probably because I was about 600 miles away from you.
I’m late to the commenting party once again. But alas … I’m here at last as I know everyone was waiting in anticipation for me to spew out some really eloquent verbage. OK — here it is … incest => EEEEW. Aside from the evident gross factor for me personally, I quote xoloitzquintle who succinctly states:
The possibility of genetically screwed up children is enough of a reason to bar incest. Two committed adults of either gender wanting to be together is not equatable to anyone wanting to have sex with their sibling. And think of the possibilities for abuse it would open up if it were legalized. Mothers with sons. Fathers with daughters. I can’t see how anyone can think that’s something that should be legal … and is equitable with my having a relationship with an adult man — and not one of my brothers (eeew once again).
PS — Here, here to Abogado’s points of note on judicial activism. I have nothing to add as I’m in full agreement with his succinctly put rationale. One thing, though, it’s like I’ve said before … we don’t actually live in a true democracy. We live in a representative republic. I’d personally rather have it that way rather than going to the ballot box on every single major issue. Also .. checks & balances have worked brilliantly since the nation’s inception. Otherwise, we wouldn’t have had the most stable government of any nation for this long and we likely we have devolved into 50 separate little homogenous nations.
“red dotted line” — huh?
dictionaries, encyclopedias, existing legal documents (marriage=man+woman)
You can’t be right about everything Abogado … that’s my job.