Tuesday, January 12, 2010

A strategy of election nullification

Imagine, just for a moment, that we live in a post-Roe v. Wade America. As each state battles over whether abortion should be banned or allowed, all sorts of laws, referendums, propositions, and other ballot initiatives are placed before the public.

Now imagine that in, say, New Jersey a proposition to allow abortion--we'll call it Proposition 18--is passed by a pro-abortion majority. Immediately, the pro-life side cries foul, and claims that those who worked to get Proposition 18 passed were motivated by bias and hatred against the unborn. As they challenge Proposition 18 in court, they insist that free-speech law didn't apply, and that they should have the right to seize and review all sorts of communications and records from the "Yes on 18" side to find examples of this unconstitutional bigotry and hatred against the unborn.

Sound unbelievable? It is--and it's also happening, not in regard to a fictional Proposition 18, but in regard to the real Proposition 8, which banned gay marriage in California. Here's the story:

California's high-profile federal lawsuit against Proposition 8, which begins in court on January 11, appears to be about creating a federal case for same sex marriage. But in fact, much more is at stake. Lurking in the shadows of this case is a breathtaking expansion of judicial interference with perfectly valid elections. Whatever your views about Proposition 8, we surely should be able to agree that special interest groups can’t go into court to overturn elections they don’t like.

Ted Olsen and David Boies want to convince the court that the alleged anti-gay bias of Proposition 8 supporters should invalidate the election. But first, they have to find some such bias. This is why Olsen and Boies sought the trial court’s permission to demand confidential campaign documents. They want free reign to rummage around through the Prop 8 campaign’s computers and filing cabinets, looking for evidence of this supposed meanness. The trial judge had ruled that Prop 8 proponents had no First Amendment privilege, and therefore had to hand over all communications among members of the campaign and their contractors.

The Ninth Circuit Court issued a preliminary order against the enforcement of these outrageous demands. While this is a welcome development, it is only a temporary reprieve for the integrity of the electoral process. The Ninth Circuit should completely overrule the trial court.

Now, I've heard some gay-marriage supporters say that any election which votes against people's "rights" is automatically invalid and must be overruled by a court. That, however, begs two questions: first, that marriage is a right, and second, that it is a right for which the gender of the participants is irrelevant.

However, neither of those questions are settled matters. Marriage looks more like a privilege than a right, since it is not available at all times to all peoples or even at most times to most peoples, but has been a rather restricted state from its inception. Unlike, say, the right to free speech or freedom of assembly, marriage can only be entered into by people who meet certain criteria, and in all but five states those criteria include gender differentiation. If marriage is a right, why do we bar people from it based on age, present marital status, degree of kinship, and the like? How can a right exist to something so inherently exclusive?

The second, that the genders of the participants or any notion that there should be a gender difference is an arbitrary qualification with no possible significance, is what the whole debate is about. And it is not, by and large, a debate motivated by some sort of irrational hatred; it is a debate about what the definition of "marriage" is or ought to be, and whether there is anything about the union of a man and a woman which is different in the eyes of the state from that of two men or two women.

Whatever the outcome of the trial in California--or, eventually, the Supreme Court--may be, the gay-rights supporters do not do themselves any favors with the strategy of election nullification, of insisting that any election that does not go their way could only be the result of hatred and bigotry, and that only elections which advance the gay agenda are permissible. Such an attitude is really a form of totalitarian thinking, in which only pre-determined and acceptable outcomes are allowed to prevail, and all others rejected--and what one special interest group succeeds in doing today, another may do tomorrow, at which point the gay-rights groups may eventually find themselves on the receiving end of the attempt at bullying, intimidation, and election nullification which they have adopted as their strategy of choice in this debate.


Geoff G. said...

A question:

If every political issue is to be settled by referendum and majority rule (50%+1) trumps all, then what the heck is the point of having a Bill of Rights? Why bother with a Constitution at all?


That, however, begs two questions: first, that marriage is a right, and second, that it is a right for which the gender of the participants is irrelevant.

The first question is settled law:

The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men. Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). See also Maynard v. Hill, 125 U.S. 190 (1888). LOVING v. VIRGINIA, 388 U.S. 1 (1967)

The second is the open question which is at the heart of the current case.

Geoff G. said...

On the question of whether the gender of the participants is relevant, I'm racking my brain trying to come up with a legal scenario where gender actually is relevant in this day and age.

We no longer deny women the right to vote or the right to personal property (notwithstanding the wishes of the National Review editors). Marriage in eyes of the law no longer means that the woman is made subject to the man (although certain women may choose to place themselves in that position). Women are welcome to pursue any career they personally qualify for, to the extent that the law explicitly prohibits gender discrimination.

Perhaps someone here can come up with an area where the law (officially at least) treats men and women differently.

I suppose there's abortion, where the state has allowed women to make that decision unilaterally, regardless of the father's wishes. Women are treated differently from men there. That's working out just great, isn't it?

Red Cardigan said...

Geoff, when you quote from Skinner vs. Oklahoma, you might just want to take a look at that case and its decision, which was about whether the state had the power of compulsory sterilization of those convicted of crimes. In particular, that right you mention is worded this way:

"We are dealing here with legislation which involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race. The power to sterilize, if exercised, may have subtle, far-reaching and devastating effects. In evil or reckless hands, it can cause races or types which are inimical to the dominant group to wither and disappear. There is no redemption for the individual whom the law touches. Any experiment which the State conducts is to his irreparable injury. He is forever deprived of a basic liberty."

It is "marriage and procreation," not "marriage" alone, which according to Skinner vs. Oklahoma is one of the basic civil rights of man. In fact, the two concepts were inextricably linked in the minds of the Court as it issued the Skinner vs. Oklahoma decision. What, after all, would the freedom to marry mean if a man could be deprived of his rights of marriage which included the attempt to procreate? That's what the court was asking, and that's why it ruled against Oklahoma's law involving compulsory sterilization.

You still haven't answered my earlier question. What is marriage? How do you define it so that a legal contract involving the mutual right to sexual intercourse (which necessarily involves a man and a woman, at least if we're going by the recognized biological definition of that) isn't at the heart of the definition, without then opening it up to sexless groupings of any people who want tax breaks? You can't. And, as I said before, you don't care that you can't; societal collapse is a price you are willing to accept so long as you get what you want, here.

Siarlys Jenkins said...

Geoff is correct that a majority vote may not over-rule a constitutional right. However, the motives of those who voted or campaigned for the majority position are entirely irrelevant to that question. It is an objective one. If a majority votes to enslave all left-handed, red-haired, hazel-eyed people in a given state, it is unconstitutional, not because those who so voted are mean, nasty and bigotted, but because there is unambiguous language in the constitution which flatly forbids involuntary servitude.

The basis of Lawrence v. Texas was not that anti-sodomy laws are mean spirited or bigotted, but that there is a well established constitutional right to be left alone, in the immortal words of Justice Louis Brandeis.

As Justice Antonin Scalia said on one of his better days (concurring decision in the Apprendi decision), it is a common fallacy that the Constitution means what we think it ought to mean. It does not, it means what it says.

There is a good-faith argument to be made that the Fourteenth Amendment to the federal constitution, which guarantees all citizens equal protection of the laws, requires that every state which issues marriage licenses issue them alike to opposite-sex and same-sex couples. That argument is no stronger or weaker because of the motives of the people who campaigned for Proposition 8.

I believe that argument will fail. It is true that the NAACP legal staff submitted a brief saying that the reasoning of Virginia v. Loving cannot be upheld without also accepting a right of same sex couples to marry. But I have constructed a sound argument to the contrary without much mental effort. It is plain and obvious. In short, the state of Virginia issued licenses for something called marriage, defined as the union of a man and a woman. The state may not tell a man which woman he can marry, or tell a woman which man she can marry, but that marriage IS the union of a man and a woman is a fundamental part of the definition.

The long version is available here:

I believe Erin has a valid insight here: trying to establish a constitutional case by investigating the motives of the people who voted this way or that way is a sign of extreme weakness, hysteria, and genuine concern that they don't have a case at all. Otherwise, they wouldn't be stopping to a tactic that is not only illegitimate, and almost certain to be over-ruled, but has little to do with making out a constitutional right in the first place.

Geoff G. said...

Actually, Erin, if you read the case history, the Court has asserted that there is a right to marriage and there is a right to procreate (which are both aspects of the larger right to privacy, see ZABLOCKI v. REDHAIL, 434 U.S. 374 (1978) for a fuller discussion). The two aren't intertwined.

Would the Court assert that the State has a right to take away the right to procreate outside of marriage (something that might even be objectively good)? Of course not. That's actually precisely what Skinner v. Oklahoma was all about. The right to procreate is full and absolute in and of itself.

So why can it take away marriage in the absence of procreation? The obvious answer is that it cannot. Again, the legal right to marry is absolute regardless of intention or capacity to have children.

What is marriage?

My simplest and most straightforward answer is that marriage is the act of otherwise unrelated adults entering into a permanent enterprise to form a family.

So it doesn't apply to roommates, since with roommates there's no permanent intent.

It doesn't apply to existing relatives, because those relatives already have a family bond.

It doesn't apply to friends, because friends do not have so grand an enterprise in mind.

And for the Santorums out there, it doesn't apply to animals, because animals lack the mental capacity required to enter into the commitment.

Likewise, it doesn't apply to children, because they lack the emotional capacity and judgment to enter into the commitment (the same reason children legally cannot enter into any contract).

Are biological children often a feature of families? Sure they are. But I'll lay dollars to donuts that you know a married heterosexual couple without kids (or with adopted kids) that you reflexively consider a bona fide family.

opey124 said...

In this whole debate, what is sad to me is the inability to see and say the homosexual acts themselves are disordered.
This can be seen, as has been stated, on the natural level.

c matt said...

However, the motives of those who voted or campaigned for the majority position are entirely irrelevant to that question.

Exactly. What's next - invalidating any vote that is not for a black candidate because it must be based on racism?

Siarlys Jenkins said...

Geoff, you are capable of some well developed thought process, but I notice in this discussion you are skirting the bedrock constitutional arguments. Like the plaintiffs Ted Olsen has cobbled together, you seem to recognize that you have no answers which would pass constitutional muster.

By the way, Geoff and Erin, H.M. Stuart has asked me to extend once again an invitation to join the discussion at Alexandria, Crossroads of Civilization. I'm not certain, but I think the vision is to recreate on-line the assembly of citizens who got together to discuss the issues of the polis on a more or less daily basis. We're not their yet. You would both be welcome additions and welcome new dimensions.

Geoff G. said...

c matt and Erin, they're trying to show that homosexuals are a suspect class. Hence the guy on the stand talking about the history of discrimination and oppression and hence the interest in the motivations of the Prop. 8 supporters. Personally, I think homosexuals meet three of the four standards, but they'll probably fail on the fourth because of recent successes and near-successes at the ballot box and in legislatures.

Siarlys Jenkins

I notice in this discussion you are skirting the bedrock constitutional arguments.

If there is a flaw in my reasoning or in my citations, please point it out.

But read through the Zablocki v. Redhail case cited above first and then tell me the Supreme Court hasn't well and truly established a right to marry.

I fully agree with Erin that the question of the gender of the participants is the real nexus of the debate. Does it matter? Should it matter? That's essentially the question before the court.

This sentence, however, is a real hoot:

Such an attitude is really a form of totalitarian thinking, in which only pre-determined and acceptable outcomes are allowed to prevail, and all others rejected--and what one special interest group succeeds in doing today, another may do tomorrow, at which point the gay-rights groups may eventually find themselves on the receiving end of the attempt at bullying, intimidation, and election nullification which they have adopted as their strategy of choice in this debate.

Lady, spare me the pseudo-martyr complex. The day a Christian is dragged out of their home by the cops and thrown into jail over their religious beliefs is the day you get to apply the word "totalitarian" to us.

Besides, we've already been there. Remember those sodomy laws that your good Catholic Justice Scalia was so keen to defend? Remember the guy who was arrested in his own bedroom in his own apartment for breaking them? Who spent a night in jail over them? Who had to post bail to get out? In 1998?

You want totalitarian? Take a look in the freaking mirror.

Siarlys Jenkins said...

Geoff, if you looked around a little instead of being infatuated by your own moods, you would notice that I am a vigorous defender of Lawrence v. Texas. Among other things, I have been a caustic critic of those who maintain that if the law can't stop two men from engaging in consensual sex, then the law can't ban incest either.


Nor do I question that the Supreme Court has established a right to marry. However, the first question is, what is marriage. Everybody seeking the right to marry is either a man or a woman. Quite irrespective of what anybody's personal preferences are, heterosexual, homosexual or nonsexual, it is entirely possible that a specific tie between someone who is a man, and someone who is a woman, constitutes a marriage, while the all the many other ties which may exist between various combinations of men and women, while possibly quite wholesome and beneficial, may not be marriages. If you want a marriage, marry a woman, because that is what marriage is. If you don't want it, that doesn't mean you get to call anything else you care to seek in your life a marriage.

Proving animus against a demographic category is irrelevant: Lester Maddox has every right to conceal bigotted thoughts in his heart, and to indulge in bigotted remarks to his personal friends. What he cannot do, while engaged in a commercial enterprise, is exclude members of the public from walking in as customers on account of their so-called "race," The motive of those who supported Prop 8 doesn't matter. Whether Prop 8 in fact, in its action, violates equal protection of the laws, is the valid issue. It doesn't, because every man and woman in California remain free to enter into a marriage, or not, as they prefer.

Amy said...

Marriage looks more like a privilege than a right, since it is not available at all times to all peoples or even at most times to most peoples, but has been a rather restricted state from its inception.

If marriage is a right, then - by logic - any woman who turns down a proposal or any man who gets cold feet is violating someone's right to marry. That's the only logical conclusion in arguing gay marriage - or marriage in general - is a right.

Geoff G. said...

Siarlys Jenkins, I owe you an apology; my closing remarks in my last post were not directed towards you, but rather towards the final sentence of Erin's original post. I did not mark that clearly, and I apologize profusely for even giving the impression that I might have done so.

Of course, in the larger sense, you're absolutely right. Maddox's thoughts were and are irrelevant. Likewise, the motivation behind Prop. 8 is similarly irrelevant. Only the result matters

But in a technical, legal sense, they are relevant because of certain tests that the Supreme Court has established with respect to the fourteenth amendment.

Two of those tests are that the group in question must have a shared history of discrimination and a corresponding lack of political power. Maddox's election as governor in spite of (or, perhaps more accurately, as a result of) his beliefs speak eloquently to both. Thus, as a matter of law as it currently stands, they are indeed relevant.

Amy, you're not doing your side any favors by playing dumb.

But I'll play along.

When the Court speaks of a "right to marry," it's obviously not speaking about your right to grab anyone off the street and force them at gunpoint to the altar.

Instead, "right to marry" is shorthand for the right for two single adults to mutually and consensually enter into a state of matrimony.

Siarlys Jenkins said...

Thanks Geoff. I'm not going to make a whole lot of friends over this issue, because I sharply disagree with almost everyone who has strongly held views for and against. You and I still disagree on what the right to marry means, but you are correct it has to do with the right of two people willing to enter into matrimony, since marriage, by definition, requires two (or more of polygamy or polyandry are under consideration). Nobody can marry by themselves.

The political strength of those who formally organize under the label "gay" is getting to the point where "corresponding lack of political power" could be quite a joke. I would support your analysis as far as laws which specifically proscribed consensual homosexual acts. I don't agree as to the definition of marriage, precisely because the laws were NOT written for the purpose of excluding homosexuals. If Loving v. Virginia were properly invoked, we would be looking for laws which REQUIRED homosexuals to marry other homosexuals, and prohibited homosexuals from marrying heterosexuals.

It may be that same-sex marriages will be increasingly accepted over the next few decades. But it is a new and different and novel idea, not merely the application of marriage laws to people who have been excluded. I still want to see a coherent definition of marriage that is not infinitely malleable before I entertain the notion that someone has been denied the equal protection of the laws.

Rebecca said...

Geoff I have a few questions for you:

1. What does "family" mean?

2. Why do the adults need to be otherwise unrelated?

3. What would prevent, in your definition, three, or four, adults from all marrying one another?

Siarlys Jenkins said...

Erin, Geoff is posting at a prodigious rate at Alexandria. I miss you over there.
If interested, email
alexandriablog yahoo com

I see what Geoff is saying about a "suspect class." He's working off this line of legal analysis: The second post-Bowers case of principal relevance is Romer v. Evans, 517 U. S. 620 (1996). There the Court struck down class-based legislation directed at homosexuals as a violation of the Equal Protection Clause. Romer invalidated an amendment to Colorado’s Constitution which named as a solitary class persons who were homosexuals, lesbians, or bisexual either by “orientation, conduct, practices or relationships,” id., at 624 (internal quotation marks omitted), and deprived them of protection under state antidiscrimination laws. We concluded that the provision was “born of animos-
ity toward the class of persons affected” and further that it had no rational relation to a legitimate governmental purpose. Id., at 634.

That's Anthony Kennedy writing in the Lawrence case. It is plausible that the passage of Proposition 8 could likewise be framed as "born of animosity toward the class of persons affected," namely homosexuals, but, that cannot be said of the original marriage statute at issue. "The absence of legal prohibitions focusing on homosexual
conduct may be explained in part by noting that according to some scholars the concept of the homosexual as a distinct category of person did not emerge until the late 19th century.
See, e. g., J. Katz, The Invention of Heterosexuality 10 (1995);" Also from Kennedy.

That would leave us with a narrow decision, after all this sound and fury, overturning Prop 8, but leaving every other state's marriage laws intact.