Congressional leaders have determined that two of the most compelling issues of the day, making them the apparent focal point of June, is flag burning (official amendment to be submitted June 14?) and same sex marriage. This is a reflection of who is in control (John Dean reviewed a good sounding book on the bunch), namely a group in some respect tied to social conservatives. Thus, it is only proper -- in one sense of the word -- for them to cover this ground. It does not mean, as a guest commentator at Glenn Greenwald (the blog is among the new changes to my blogroll) aptly discusses, it is a proper expression of the public values we should hold dear. Likewise, like bad speech (nod to recent post) generally, it can be used to focus on such "core American values."
The President's radio address today focuses on the amendment against same sex marriage. The address can be attacked from any number of directions. For instance, why do we need such an amendment? "An amendment to the Constitution is necessary because activist courts* have left our Nation with no other choice." The fact that this simply doesn't match reality isn't really a surprise by this point. The assumption the President of the United States will not promote bullshit was never totally an accurate statement (politics requires some), but we know by now that things has gone to ridiculous levels. Anyway, he "informs" us:
Unfortunately, activist judges and some local officials have made an aggressive attempt to redefine marriage in recent years. Since 2004, state courts in Washington, California, Maryland, and New York have overturned laws protecting marriage in those states. And in Nebraska, a federal judge overturned a state constitutional amendment banning same-sex marriage.Of course, the word "protect" is open to debate. Thus, consider Bush's own words: "The Defense of Marriage Act declares that no state is required to accept another state's definition of marriage." Well, no. DOMA actually concerns a particular sort of full faith and credit in the area of marriage, namely same sex unions. In respect to these unions, which various faiths honor,** it surely does not "protect." Furthermore, respecting other marriages, the law does not say too much -- for instance, California might set forth a rule that in intrastate disputes the court would have to sometimes apply the other state's rules as to marriage. So, the law (and pending amendment) clearly is too underinclusive if we were concerned with protecting "marriage." Anyway ...
These court decisions could have an impact on our whole Nation. ... If [DOMA] is overturned by activist courts, then marriages recognized in one city or state might have to be recognized as marriages everywhere else. That would mean that every state would have to recognize marriages redefined by judges in Massachusetts or local officials in San Francisco, no matter what their own laws or state constitutions say. This national question requires a national solution, and on an issue of such profound importance, that solution should come from the people, not the courts.
This is more relevant than referencing some lower court opinions (WA, CA, MD, and NY). As to MA, the judges (as is their wont) interpreted what "their own laws [and] state constitution say[s]." I'm also unclear about the "local officials," who I assume are elected by "the people" too, officials who wished to let local couples marry in such a way that their own local communities fully supported. After all, as he says, "Democracy, not court orders, should decide the future of marriage in America." What is more democratic, leaving it to the states, where constitutions can be and has been altered with some reasonable degree of flexibility, or by a regime that "must be approved by two-thirds of the House and Senate and then ratified by three-fourths of the 50 state legislatures."
[This is only a minor criticism, so to speak. Though I am loathe to use the federal courts, surely the Supreme Court, to quickly overturn same sex marriage prohibitions, I do think the U.S. Constitution -- rightly understood -- frowns upon them. I look upon this somewhat pragmatically -- even racism was attacked by the courts slowly. Thus, a slow development of (federal) case law protecting same sex couples would not be a problem for me. "Democracy," as we understand it, would be followed just as free speech is "democratic" even if a majority wants to abolish it. But, yes, the amendment can be attacked on federalist grounds too. Where is the fire? Even El Decider must speak on what "might" happen, given the paucity of evidence.]
Some note that the suggestion that the courts should not get involved in questions of marriage might call into question Loving v. Virginia (interracial marriages), which would lead to a few to say "exactly!" But, those "activist" courts have dealt with questions of marriage in any number of ways, since there is no "marriage exception" to general rules of statutory and constitutional application. For instance, to cite one ruling, if a measure has to have one subject, and a marriage measure has two, should the courts not strike it down? The Nebraska ruling is a case in point: it dealt with a specific matter, not with the overall concept of only men marrying women, and vice versa. Nuance is not his strong suit, however. Or, should same sex marriages be treated by some special rules?
Ages of experience have taught us that the commitment of a husband and a wife to love and to serve one another promotes the welfare of children and the stability of society. Marriage cannot be cut off from its cultural, religious, and natural roots without weakening this good influence on society. Government, by recognizing and protecting marriage, serves the interests of all.
Maybe, he thinks so. On the other hand, culture, religion, and even natural law (as understood) are not fixed concepts. They develop over time as does marriage overall. But, these bigoted morons wants to fixed it into a federal constitutional amendment. The immediate issue is important on its own, but the overall principles being twisted here are even more so. Anyway, per GG:
Apparently, writing homophobia into the United States Constitution and turning the flag into a sacred icon will help us win the "Long War" against terror, reduce the widening income gap, reduce the trillion dollar deficit, bring health care to the 45.8 million uninsured, improve our education system, fix the flawed electronic voting systems, make gerrymandered districts competitive, put an end to D.C. corruption, reduce the 15,000 dollar average household debt, etc. Apparently, we will not be able to confront these problems unless we can make sure that gays don't have legal protections and benefits that encourage them to stay in stable monogamous relationships and that people don't set cloth on fire.
Obviously, not. But, this is the mentality that guides those that "lead" us now. As John Dean notes: "In a few months, however, [we] can do something about it when they elect the 110th Congress." And, we can also focus on the people themselves. People who actually do worry about flag burning (see Sen. Clinton raising the issue) and same sex marriage (John Kerry opposes it). People who are deserve better than their current leadership, partly because they truly have mixed feelings about these issues, and therefore need leaders that can help them understand them. Not those who further poison the well with simplistic ignorant drivel.
This too goes beyond this one issue.
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* In his remarks before the swearing in (by Justice Kennedy, for whom BK served as a clerk) of the subject of a recent blog entry, El Decider spoke against activist judges -- this new judge will be different, he will apply the law, not make it etc. ("Activism" must be defined, since I assume they are not to be inactive totally ... akin to let's say Justice Douglas post-1975.) BK also was praised for his public service, which he would continue to offer -- again, it is all on how you define the term. Many conservatives, I bet, agree that BK will continue to "serve the public" in his new role.
** You know who notes: "Marriage is the most enduring and important human institution, honored and encouraged in all cultures and by every religious faith." But, aside noting "that every America deserves to be treated with tolerance, respect, and dignity," he wants to play favorites. Some faiths should win over others though "civility and decency" should be supplied to the losers. Up to a point.