Tag Archives: same sex marriage

The Left will rue the day they cheered an activist Court

Summary:  The reactions to the Court’s ruling on Obamacare and same sex marriage divide on predictable partisan grounds, as Americans seek what they want. We care little about Constitutional procedure and less about the work of making the machinery work as the Founders intended. It’s the thinking typical of political regimes’ last days, when belief has gone and people just follow the forms.  {We’re back to one post per day, as I consider winding down this project.}

Justice lying down

The Supreme Court has legalized same-sex marriages. David Fontana at Slate gives some of the typical liberal cheering for the Court’s decision on same-sex marriages: “The Justices’ Justice” — “For years we feared the consequences of pushing social progress through the courts. Obergefell v. Hodges will prove we shouldn’t.”  I suspect he’s cheering prematurely.

For a clearer example of thinking on the Left see Matthew Yglesias’ reaction, exultant and quite daft (red emphasis added)…

What’s more, it’s a huge analytic mistake to assume that striking down some law is an anti-majoritarian action. The way the United States government works is that change is very hard. Given the current state of gridlock in Washington, it’s pretty clear that neither a gay marriage legalization bill nor a gay marriage illegalization bill could pass. On marriage equality, like on virtually every other issue, the status quo is simply likely to prevail. Into the breach steps the Supreme Court — in this case, on the side of the majority according to polls.

All in all, I think the American system of checks-and-balances has a lot of flaws. But unelected judges invalidating unjust laws that a majority of the public wants invalidated is basically the system working at its best.

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The Court overturns two laws passed by Congress. Everybody cheers!

Summary:  This was a bad week for the Republic. No matter what your opinions about Same Sex Marriage and the Voting Rights Act, these decisions weaken us. As we become more accustomed to undemocratic solutions, our ruling elites become stronger. We become weaker.

Oracles, ruling on the basis of a document in which few people believe.

Oracles of a document in which many of us no longer believe

It {is} an axiom of eternal truth in politics that whatever power in any government is independent, is absolute also; in theory only at first, while the spirit of the people is up, but in practice, as fast as that relaxes. Independence can be trusted nowhere but with the people. They are inherently independent of all but moral law …
— Jefferson in a letter to Judge Spencer Roane, November 1819

The Supreme Court overturned two laws passed by Congress and signed by the President: the Voting Rights Act (VRA) and the Defense of Marriage Act (DOMA, signed by Clinton in 1996). Being bystanders and sheep, Americans cheered their teams’ wins and boo’d their defeat. A profoundly undemocratic institution has gained a greater role over our elected representatives no longer matters to us.

Being fools we do not realize that there are not two teams, just two factions of our ruling elites. This week the Court did their will on both verdicts. Gutting the VRA allows the GOP to continue its voter suppression projects, to keep the more unstable lower orders in line (having no property, nothing to lose, oligarchs always worry they might be mobilized against the regime).

As for the victory for gay rights, it is politically inconsequential. Our plutocrats have relearned ancient wisdom: it’s best to leave the proles to their own lives. Who they screw, their family structures, how they organize their communities — none of these things matter. Our rulers focus on the essentials of concentrating income, wealth, and power.

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Do we want to bring back traditional marriage? What is traditional marriage?

One of my co-authors pointed out that the previous post was incomplete:  Should we thank the Court as it rescues us from our bad laws? Or just bow?. It included a quote that was absurdly incorrect. Although peripheral to the point of the post, a correction is required.

It’s this from “Gay marriage and the Supreme Court’s empire“, Paul Mirengoff, Powerline, 4 March 2013:

By “traditional definition of marriage” in this context, I really mean the universal definition — one that, as far as I know, prevailed until very recently in all societies since the beginning of recorded time.

Here we have the confident ignorance that characterizes modern conservatism. Marriage customs vary widely throughout the history of Earth’s many cultures. From nothing — free pairings — through polygamy (usually polygyny — like the patriarchs in the Bible; rarely polyandry). With the most constant feature being that, one way or another, men in the elites get several hot women.

Also, “traditional marriage” often required no consent from the woman (or women) involved. Nor did divorce (eg, Deuteronomy 24 and the Islamic ṭalāq).  Both might even take place simultaneously, as in wife selling (see Wikipedia).

The quote is daft in another way.

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Should we thank the Court as it rescues us from our bad laws? Or just bow?

Summary:  America remains locked in a battle between Left and Right. Each fights to protect the Constitution — or the pieces of it they value. Neither cares for the it as other than a tool to advance their interests. The Constitution, torn between them, slowly withers. The American people mildly, intermittently cheer both sides — wanting what they want, ignorant and uncaring of the political processes that constitute the Republic. Today we see this tragedy play out over same sex marriage.

Oracles, ruling on the basis of a document in which few people believe.

Oracles ruling about a document in which many (most?) Americans no longer believe.


Americans have voted for laws not allowing same sex marriage. Now opinions have changed (for the better IMO), and we can change those laws.  Acts of collective action like this,  working through our elected representatives, strengthen the Republic. We shape America, making our history, showing our power to govern ourselves. This is the natural course of evolution in a democracy.

But many prefer quicker extra-legal measures, wanting results NOW — not caring about the means. Or the consequences.  The Courts, often ready to act as priest-kings — deciders — provide a fast track for social change. As with Roe vs Wade in 1973, the likely result of Supreme Court voiding the Defense of Marriage Act (1996) will be to extend and embitter the debate and further weaken the legitimacy of the courts.

The Republic — and hence us, the people — grow weaker with each exercise of extra-constitutional power by the Courts and the Executive, no matter how well-intentioned. Eventually our leaders will take bold action, promising to give us what we want — security, prosperity, whatever — without bothering to pretend to follow the Constitution. At that point the Constitution will have died.

My guess most of us will live to see that day.

Some people on the Right look at the Courts. Today they cherish the Constitution

I agree with the following views. But the core fact of American politics today is that neither Left nor Right value the Constitution as anything other an instrument to advance their policies. Tomorrow — when looking at government oppression of Muslims, extra-legal assassination of Americans, or illegal surveillance — they might show less concern about old documents.

Gay marriage and the Supreme Court’s empire“, Paul Mirengoff, Powerline, 4 March 2013:

{N}ine glorified lawyers are about to tell us whether the traditional definition of marriage as requiring members of the opposite sex is rational and/or useful (whether the standard is “rationality” or “utility” is up for grabs in the case). By “traditional definition of marriage” in this context, I really mean the universal definition — one that, as far as I know, prevailed until very recently in all societies since the beginning of recorded time. Isn’t it odd that as few as five judges could determine that the traditional definition of this fundamental institution is irrational (or not useful), and make this judgment stick?

Supremacist Courts“, Mark Steyn, National Review, 4 March 2013:

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What’s the future of the family in America? How will that change our government?

Summary:  As the dust from the election settles, let’s not forget the powerful elements of the conservative critique of 21st C America. Here we look at one of the many forces driving the expansion of the government — the family. What might be its fate in the next few generations?



  1. A question about the family, our government,
    and the future of America
  2. The answer: it’s toast, it’s growing, and …
  3. Allan Boom explains
  4. For More Information



(1)  A question about the family, our government, & America

Question from Matt D, in response to Civil rights just took a step forward, the slow hard way. The right way. (about same-sex marriages):

I read your first link with quotes from de Tocqueville, and I have a question: How does your support for gay marriage square with de Tocqueville’s observation that the suppression of natural hierarchy among individuals drives societies towards centralized despotism? It is clear enough that the legitimization of same-sex marriage is not a driver of the degeneration of well-defined gender roles, which has been taking place over the last half-century. But it is the direct result of this degeneration, and helps to make it more durable.

Through the lens of de Tocqueville’s analysis, would not the blurring of male-female distinctions represent the elimination of the last natural focus of authority in the smallest and most basic unit of human organization? I won’t speculate about the observable results of this process, as that is a topic where there is much diversity of opinion. But on a purely theoretical level, using de Tocqueville’s framework, will not the man who can no longer order his family and the woman who can no longer be protected by her man be filled with a thirst for an ever-stronger and more intrusive centralized authority?

(2)  The answer: it’s toast, it’s growing, and …

Here we come to deep waters, in which the conservative viewpoint has much to say — if we can find these insights among the trash in which it hides today.

In brief, the family is toast in its current configuration. My guess is that the places where this disintegration have advanced most (eg, Scandinavia, Los Angeles) society is coasting, support by inherited cultural traditions which no longer have any foundation. My guess is that this is one of our greatest social problems, which the boomers bequeath to future generations much as the Founders did slavery. We’ve built a system that we don’t like with hopes it will all work, but no ideas as to how.

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Civil rights just took a step forward, the slow hard way. The right way.

Summary: Yesterday the progress of civil rights in America took another step forward with the election of Tammy Baldwin as Senator of WI, and the approval of same-sex ballot initiatives in Maine, Maryland and Washington. Here’s a quick note about this historic development.

To repeat what I said then August 2010 in The quest for Black’s civil rights was not like the quest for same sex marriages

Same sex marriages have gone from illegal to accepted, and I support this evolution. But let’s not lie to ourselves, claiming that our wisdom makes evident what previous generations should have seen. Instead we have changed our society’s rules. It’s evolution — also called progress.

Much of the commentary about this ruling {Judge Walker’s decision overturning California’s Proposition 8} assumes that rights are Platonic objects, pre-existing in some real but intangible sense. And Judge Walker discovered this right to same-sex marriage — proving his predecessors (those who ruled otherwise) to be wrong. As scientists, like Einstein, do. The psychological mechanisms for this conceit are fascinating, but largely an unwillingness to see that our society evolves — and our interpretation of the Constitution evolves along with it. That’s disturbing to those who see the Constitution as an unchanging foundation — like God, King and currency were for earlier societies.

But the reality is that societies evolve. In America the mechanism for political change is and should be elections, not rulings from unelected judges. I believe instituting widespread abortion through the Courts made it a poisonous political issue far longer than would have been the case if normal channels had been used. On the other hand, this delay — like any delay in granting new rights — comes at a serious human cost.

Today civil rights advanced by vote of the people. The hard slow way. The right way.

About the political significance of this

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The quest for Black’s civil rights was not like the quest for same sex marriages

Summary:  A follow-up to Another American judge weakens the Republic’s foundation, responding to comments that display serious amnesia about our history.

I’ve received dozens of comments saying that Judge Walker’s decision overturning California’s Proposition 8 (the opinion) was equivalent to one of the decisions overturning segregation, from Brown v. Board of Education (1954) through Loving v. Virginia (1967, overturning Virginia’s ban on interracial marriages).  This displays modern American’s remarkable amnesia.

The 14th amendment was not discovered by judges.  After the Civil War the South again suppressed African Americans.  Almost a century later, judges wrote a paper trail to liberty.  But only actions in the real world gave African Americans their rights:   Congressional legislation, Presidential actions (including use of armed force, civil and military), plus mass protests (including violence).

It’s bizarre to compare this bloody, century-long struggle to the discovery of a right to same-sex marriage.  They both represent progress, but in very different ways.  Dressing the latter in prestige borrowed from the former distorts our history and ignores the risks being taken.

Update:  As stated in the previous post, Judge Walker could have ruled that Proposition 8 violated the equal protection clause because he believes it does in fact violate it.  Most of us (including me) would have applauded and moved on.   His convoluted ruling not only fails to adequately settle this issue, it slides us down a potentially dark road.


  1. The role of force
  2. The role the Presidential orders and Congressional legislation
  3. The nature of progress in a Republic
  4. For more information and contact info

(1)  The role of force

The 14th and 15th amendments ended the legal basis for racial segregation (although commendably written in an open-ended fashion not limited to racial inequality).  That’s clear both in the text and original intent.  An insurgency by Southern whites prevented their implementation, in part due to the Depression of 1873.  This was perhaps the turning point:

In 1875  Democrats implemented the Mississippi Plan to recapture control of the State government, including violent suppression of Black voting by the Red Shirts and White League.  That September Governor Adelbert Ames requested Federal troops after 20 – 30 African Americans were killed in Clinton MS.  Attorney General Edwards Pierrepont refused, saying “The whole pubic is tired of these annual autumnal outbreaks in the South.”

The Compromise of 1877 finally ended Reconstruction.  Plessy v. Ferguson (1896) wrote its epitaph, “separate but equal”.  The long road back required intervention by both the military and law enforcement.  More evidence that counter-insurgency requires a long sustained effort.

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