Posted on 05/14/2004 4:42:47 PM PDT by pollywog
The company I'm keeping?
Go ahead...trust the Feds, they'll fix everything.
I was trying to show an argument the Federal courts would be likely to use. If the SJC justices of MA were lawfully appointed and confirmed under the MA constitution, I cannot see the Federal judiciary wanting to become involved in interpreting that constitution.
It's a little hard for the Federal court system to condemn judicial activism when they are the most flagrant users of it.
While it is folly to assume that black civil rights and gay civil rights are the same thing, I do believe a parallel can be drawn in seeing how the majority goes from hostility to acceptance in both situations. My comments were about white reaction to black people's civil rights, and I still feel they can be applied to heterosexual acceptance of homosexual rights.
And the "conservatives are just silly, neurotic, sad people scared by innocuous and beneficial Change" is a classic liberal smear.
And you can well expect it to be used by the liberal media. The well reasoning people here at FR are not among the folks usually chosen by the Communist News Network when they try to cover "the other side". They will certainly find some silly, neurotic scared people spouting hate and bile, and they will intersperse pictures of well-dressed, happy gay couples celebrating today's activities. I've always said that conservatives have to fight in the marketplace of ideas with concepts that can be sold to the folks in the middle. That's where elections are won, policies are made, and the tone of society is set.
Reasonable people made reasonable arguments during the Equal Rights Amendment fight during the 1970's, and they won the day. If gay marriage is to be stopped or contained, conservatives must either come up with arguments that don't involve religion, tradition, or so-called "natural law", or they must do the much harder work of getting the mushy middle to go along with establishing their religious beliefs, maintaining tradition for its own sake, and defining what they mean by "natural law" in a way that makes sense. Failure to do this means losing the battle in the same way the abortion battle was lost.
Yes it does, under Article III, Section 2:
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution......--to Controversies between two or more States; between a State and Citizens of another State; -- between Citizens of different States......, and between a State, or the Citizens thereof, and foreign States, Citizens, or Subjects.
Also, Article IV, Section 4:
The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against invasion....
Also, Article VI, the Supremacy Clause:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
(Emphases added.)
The Massachusetts supreme court has, in an egregiously abusive ruling en banc, handed down a novel law, written in a Star Chamber, that has no precedent whatsoever in United States or English law, that has not been deliberated by any legislature in the Union, granting pretended rights to a small, litigious, and factious constituency that have not been agreed to, and are indeed opposed, by the People of Massachusetts and by the Peoples of the rest of the United States of America.
This egregious and usurpatory enactment of the Massachusetts supreme court stands in violation of Article IV and its guarantee of a republican form of government, for which these four judges have substituted oligarchic rule by decree.
Furthermore, the United States Supreme Court having ruled many times on matters involving the institution of matrimony, the Massachusetts supreme court would appear to be likewise in violation of Article VI, amending by decree a legal institution of settled definition in a rebellious and insurrectionary manner, which decree pretends, by the operation of the Full Faith and Credit Clause, to alter and amend in a peremptory manner both United States Supreme Court rulings and the laws and constitutions of the other States of the Union.
The controversies among the States and the State of Massachusetts thus generated are justiciable under Article III of the Constitution, quoted in relevant part above.
You have asserted, and I have refuted, your claim that there is no authority for the United States Courts to intervene.
Yes, the company you're keeping -- the Left.
See my 244 in reply. Massachusetts is knocking over the applecart of a universal institution and hijacking every other State in the Union.
If the government's buttons can be pushed by a tiny minority for their own convenience in the face of massive opposition by the People, then what the hell does democracy mean any more? What business does any court in the land have, extending privileges to people who don't deserve them, but just play conspiratorial and Brown Shirt politics until the government says they can have them?
The basic problem is that the United States is now run by people who are no longer Americans, aren't part of America, and are hostile both to the idea of America, and to people who try to live it.
Conservatives have to level the playing field first. That means defunding the left and using political and government power, or whatever works, to disarticulate and destroy the liberal monopoly over processes of information delivery and loci of opinion formation.
I'm open to ideas on how to accomplish this.
If gay marriage is to be stopped or contained, conservatives must either come up with arguments that don't involve religion, tradition, or so-called "natural law",....
Natural law is the basis of the Enlightnment and the American experiment. Who said we have to give that up in order to be allowed to participate in the national conversation?
.... or they must do the much harder work of getting the mushy middle to go along with establishing their religious beliefs, maintaining tradition for its own sake, and defining what they mean by "natural law" in a way that makes sense.
Let's start with reinstituting the Western Canon in schools, and teaching kids about the mission of Western Civilization and its special subset, the American experiment. Let's teach them about American exceptionalism, and why the service-oriented, officious machine politics of the Left is a corruption of all of the above. Let's start there. And to do that, we have to get rid of the Ivy League, the academic Left, and the National Education Association. We must not only take education away from them, we must drive them out of education completely, preferably to roam the world in perpetual exile from the country they betrayed. If exile was good enough for the Man Without a Country, then it should be good enough for the mobs of World Socialism enthusiasts who have battened on our education establishment and laid their parasitic eggs in the ears of society's children.
They always do, don't they?
Among the culprits here is Ronald Reagan and his Sandra Day O'Connor and Anthony Kennedy appointments. Also GHWB and his Souter. Ford and his Stevens. When does the Republican Party take responsibility for the decline of the nation's moral compass?
SCOTUS is an elected position with 2@ 6 year terms.
Wouldn't solve the problem of the runaway judiciary. In FL "conservative" voters continue to support runaway "Republican" judges intent on dehydrating and starving a disabled woman in the name of "privacy."
What did you expect them to do?
If the court does NOT hear a case, the lower-level legal situation stands. It's the same as sanctioning these "marriages."
Plus why wouldn't the high court have jurisdiction here under "full faith and credit" in Article IV.
You can get rid of them.
Your forecast did not happen last year in AL where a "conservative Republican" governor turned against the state supreme court chief justice, another "conservative Republican," over the mere posting of the Ten Commandments in a public building.
The southerners are powerless to resist too. Voters keep electing people who want an office, rather than to save the country.
If marriage can be defined by any pressure group, then you open the way up for "man/beast" marriages, polygamy, and minors of the same sex "marrying" old geezers. Anybody ever stop to think that in some states you can get married very young "with parental permission." Anyone ready for a 16 year old boy marrying his gay 50 year old "lover?" What about brother and sister getting "married?" how about step-son marrying step-dad after "mom" is gone?
Gay "marriage" is patently barfable.
Well, as our good friend Luis Gonzales has pointed out in scholarly posts, it's not necessarily so. We had a long period of time where interracial marriage was legal in some states, and illegal in others, until it was overthrown by the SCOTUS after public opinion had shifted enough to allow this. We still have about half of the states allowing first cousin marriage, and half not allowing it.
Gov. Romney has stated his opinion on the law involving out of state couples, surely any state that wishes to keep its laws intact will submit to its own court that the MA marriage application was not filled out in good faith. If a non-MA state court needs a reason to not recognize the MA marriage, this would be it.
What business does any court in the land have, extending privileges to people who don't deserve them,
Well, that's what courts are charged with. They make their decisions either rightly or wrongly, but we apportion that power to them. I guess the folks in MA can use this decision as the impetus to abolish lifetime tenure for the judges of the highest courts in their state, perhaps they will get justice that is more representative of the people being served.
I'm open to ideas on how to accomplish this.
You're engaging in the best idea as to how to do that. The Internet will level the playing field like no other force in the history of communication, since the printing press. The nanny news media would keep us from seeing the Nick Berg beheading in all its gore, but with the Internet, we aren't going to be subject to Dan Rather's version of, "You can't handle the truth!"
Natural law is the basis of the Enlightnment and the American experiment.
The application of natural law to the American experiment had no problem with slavery, or the limitation of voting to white, property owning males. The American experiment is not a dead institution, and the extension of rights to those formerly on the "outs" with societal norms is continuing. At least that's the message that proponents of gay marriage have been successfully selling.
As for the rest of your post, I'm in full agreement. A classical education in Western Civilization is essential to an understanding of what our forebears lived, fought and died for.
While you might well imagine our nation's Framers coming back today, and having a cow over gay marriage, before they got to that point, they'd have an elephant over many other things. I was listening to an Australian today, who said that black people were more integrated in American society than Aborigines were integrated into Aussie society. One of the listeners at our table disagreed, but then he pointed out that it would be unthinkable for an Aborigine to be his country's Secretary of State. I reflected later than forty years ago, it would have been similarly unthinkable that we would have had Colin Powell as either Secretary of State, or as Chairman of the Joint Chiefs of Staff.
Things change. This is just one of them.
Believe it or not, yesterday on the news I heard a SSAD man say almost exactly thoses same words.
I have been thinking just that thought, and I can't imagine why, either. There may be a silver lining to this...
No, it isn't. They're going to win in a series of court decisions, the matter never having once been addressed by the People or their Legislatures in a way sufficient to bind the hands of social-liberal judges determined to give the gay cabal what it wants.
I'm one of the people who have not been given a valid reason to be against gay marriage. Of course, not being a member of a religion that tells people what to think might be a part of that.
Well, allow me.
First of all, your evident prejudice against religion is something of a handicap. You seem to see the strictures and the structures, but not the benefits. Let's discuss.
First, truth in advocacy: I'm unchurched myself, and ex-Catholic. I no longer foregather with the Catholics, having noticed after Vatican II that some of the criticisms in Gibbon's 15th and 16th chapters of The Decline and Fall of the Roman Empire seemed to be valid, and that some of the Church's statements about the immutability of its cathedral doctrines were not. Likewise, I noticed at some point that the Church of Latter-Day Saints (the Mormons) had, on the eve of their petition to be admitted as a State, had a timely revelation that they should put away polygyny, and another later on, when challenged, that they should put away racial segregation. How very convenient -- and delegitimizing. Nevertheless, I'm enough of a Straussian to recognize the value to society of many things taught people by both the Catholic and Mormon churches, and by many other churches as well. Besides general moral hygiene, the good manners and (pardon my nostalgia here) virtues inculcated by many Sunday- and temple-school teachers to children are not at all incidentally priceless to the continuation of civilization, and of the American experiment, which you have yourself generously pronounced Not Dead Yet.
Among the benefits of religious grounding of law and custom is the concept and outcome called "felicity". In the Jewish and Roman conception, strict adherence to religious procedure ("piety") led to good outcomes ("felicity"), a concept never more obvious than when it operated in the areas of hygiene, agriculture, and animal husbandry. The prohibition against pork, in a desert climate, is an example. Rules about how and when to plant are another, and about how to treat sick or injured animals yet another. These religious strictures, as shown by the Laws of Hammurabi and the Ten Commandments, led directly to Law -- let the atheist show how, without religious sanction, Law would have prospered. (Hint: He can't; there are no examples of an atheist society that became civilized. That null set is what I'd call a clue.)
Therefore, traditional rules (chalakhah, caerimonia) of deportment both in private life and in ceremonial religious life -- and the extension of religious life to include the personal -- have contributed vitally to the sum of good outcomes that antiquity called felicitas and which we call Civilization.
In the realm of personal life, there are differences among the ancient civilizations we are heirs to, and in matters private and personal we are clearly Jews. It was Jewish temple priests, and later the Essenes, who generalized the practices that we call now common modesty: the privacy of the bath and toilet, for example, and (until recently) of the obstetrical delivery room. Our concepts and norms about these things are identifiably, objectively, and irrefutably Jewish, and easily contrasted (as one recent lecturer on the Essenes did) by consideration of the mass bathing and latrine arrangements of classical civilization, which left us at Ostia an almost-intact public latrine with something like 18 or 20 privy-holes. The only similar arrangement in Western civilization is the military latrine and the naval head --exigencies of war, and marked in their exception.
Therefore, pace the American Civil Liberties Union, American concepts of privacy and proper living arrangements and deportment are thoroughly Jewish, if seen through a Christian filter, and Americans have always corrected the occasional naive visitor who offends against these customs, like the recent immigrant from one of the Asian republics of the Former Soviet Union who thought it perfectly okay to keep his young, fussy granddaughter quiet on a public bus, as people had done at home, by stroking her private parts -- causing a huge stir and cry, and the shocked grandfather to be arrested by the police. He simply had no concept of how offensive people in the States found that behavior. This is the process of socialization, and if you listen to our materialist friends, socialization is perfectly okay except when principles they dislike are involved.
You can imagine the embarrassment, in the example just cited (culled from a news story), of the lesbian social worker who might have to explain to the offender just why it was that his conduct was wrong, bad, and punishable by law, whereas her own promiscuous and unnatural couplings ought not to be.
One of the Jewish concepts that is taught in Sunday and temple schools is the concept of personal and family purity. This includes aversion to homosexuality per se, as either a sin and an abomination, or as Maimonides said of lesbianism as he condemned it, "practices of Egypt", and rebellion.
Now, I should add at this point that I think it is a huge mistake for conservatives to allow the Left to insist without effective contradiction that only secular, or more precisely secularist, principia can form an adequate foundation for any argument about social values. It is a consequentialist argument, to be sure, to say that, given that stipulation, it's game over across the board; but in fact our interest in consequences is valid and prudent, and it is again a matter of playing to lose, to give up the further principle that consequentialist arguments cannot be considered in discussions of law and policy.
I generally short-circuit these arguments by resorting to processualism: the Constitution and the Laws are whatever the People want them to be, and if at the end of the day society chooses not to extend the protections of right and principle to certain behaviors, then given the right majorities, the People's will be done. The conservative battle cry is, "trust the people", and trusting their sense of right, however grounded, is preferable to allowing the ACLU to play mind games with us, and is likewise perfectly defensible in practice, even if the price of being allowed to do so is waging political war on a class of self-ordained Uebermenschen who are fond of imposing their own materialist prejudices from the bench.
I say this because I noticed, in the "debate" sponsored by the Pew Center between Andrew Sullivan and a well-intentioned and learned but utterly hopeless punching-bag of a conservative (which is why he was invited, I'm sure), that the conservative spent a lot of time hemming and hawing over Sullivan's attack and the liberal diktat that only washed-in-the-Lamb, certified secularist arguments can be adduced as reasons for society's doing anything, by operation of the Establishment Clause. By which, of course, we mean the Leftists' own construction of the Establishment Clause, which they have precisely construed so as to establish scientific materialism as the official public religion of the United States, to please themselves.
Rejecting this argument, therefore, I say that people, in the course of formulating policy, can formulate any policy they please, if the forms are observed, based on any values they please, just as did the Founders themselves, who almost certainly did not intend that materialism and libertinism and hostility to Christianity would become the common coin of political discourse, and the default value set to be appealed to in making law. Thus Christians and Jews and Mohammedans are free to make their concepts of moral hygiene concrete in law, and deny the petition of homosexuals to be treated as their own moral peers under the law, or accorded privileges commensurate with those accorded people marrying for the traditional purposes of society. And I don't propose, either, to be hobbled by demands for consistency with this or that liberal doctrine -- that's why I'm a conservative, and that, to quote Robert Graves, is why the gods gave humanity a sense of smell.
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