Judge Roy Moore and the Myth of the Separation Clause

ChronWatch ^ | April 15, 2005 | Christian Hartsock

[OhioAttorney]

Okay, I'll play for a post or two anyway.

I'm not sure what you mean by 'absolute morality' since the word 'absolute' in this context may have any of several meanings. I do think that judgments of right and wrong are 'about' something objective and can be true or false -- that generally there's some actual ethical/moral 'fact of the matter' than we can be correct or mistaken about. (I don't claim any special insight into this myself, mind you; the fact -- if it is one -- that there are at least better and worse ethical opinions doesn't mean I personally have the 'better' ones.)

If this weren't true, it would be very odd that people ordinarily take themselves to be disagreeing about moral and ethical questions. If there isn't any 'fact of the matter' about it, then nobody can really disagree about such things because there isn't anything 'real' for them to be disagreeing about.

I'm not sure what your personal evolution has to do with this. Lots of beliefs depend on the stage of one's personal development, but that doesn't ordinarily mean that there isn't any objective truth that they can more or less closely approach. Why are ethical/moral opinions any different?

Your turn.

[OhioAttorney]

Well, you just told yourself that your last two posts were meant for you ;-).

I'm not sure who your devil's-advocate question was addressed to, then; I was the official recipient, but if you didn't intend me to be, just ignore my response.

[risk]

I can see dangers that are enormous if we ignore the law as intended and allow arbitrary political decisions because they are thougght of as fair by some.

I need more than that. I need to hear you admit that the right could undo limits on government power in order to accomplish its victory over the left's attacks on fair use of religious pageantry in government.

What I'm arguing is that this is not a one way street. The goal is to protect freedom. In doing so, we must be extra vigilant that we not dismantle any freedoms we already have in defending those that are under attack.

We can find mutually satisfying solutions to the problems we face. The constitution is a model of appropriating just the right amount of specificity (being just articulate enough) to not allow too much power for the government.

We can do the same in our battle to protect our culture and our freedoms. I think a major difference between my point of view and the Christian right's is that I don't believe government is a tool for solving the problems we face with loss of culture and moral clarity as a society. The right says "That's the way it always was (as far as we're concerned) and anyhow, we can't figure out how to do it any other way."

But government never was the source of ethical clarity in America! It is the people. And today our problems with ethics are reflective of our own failings as citizens, or citizens who seem to have bought into the French notion of moral relativism.

[jwalsh07]

And I can't resist commenting that when people want a legal precedent for legal definitions of marriage, they have to reach back to the nineteenth century and pull something from the U.S.'s persecution of the Mormons -- hardly America's finest hour by any standard.)

Which simply means that you might have a need to brush up on history, Lincoln and the Morrill Act. Lincoln never persecuted the Mormons at all. He ignored them.

[OhioAttorney]

I don't believe government is a tool for solving the problems we face with loss of culture and moral clarity as a society.

Agreed. My way of putting this is usually 'the power of the State is not a legitimate weapon in a culture war'.

Hey, maybe I'll try making that my tagline and see how I like it.

[OhioAttorney]

Lincoln never persecuted the Mormons at all.

The population of the U.S. in 1860 was what, maybe 30 million? Okay, that's one down ;-).

I'm out of here again. Later, all.

[risk]

I think externally, the state has an obligation to use its power for managing immigration, defending our borders, and supporting the overall cause of representative government; I'd go a step further and say that western civilization needs our help. Furthermore, internally the state should take a Hippocratic oath as it were, e.g. defund the ACLU, NEA, PBS, NPR, and universities that teach Marxist and post-structuralist thought as a means for understanding everything else. I'd argue that without the funding of the state, none of these internal problems would be half as much trouble as they've been. I'd also say that citizens have a right to representation in public spending on sexual health issues, as well. The government's over-extension of its power in these areas also consist of violations of consent of the governed.

[Tailgunner Joe]

The goal is to protect freedom. In doing so, we must be extra vigilant that we not dismantle any freedoms we already have in defending those that are under attack.

Like a woman's right to choose?

Like the right to sodomy?

Like the right to be free from the "mental harm" caused by "discrimination?"

Like the right of "undocumented immigrants" to receive free education and medical care?

The problem is that you are defending a "right" which was never your right to begin with - "Freedom From Religion."

[risk]

So you feel you can solve all those problems if you can only have back God in government? It's an interesting theory. Italy has all those problems and it's a theocracy.

[Tailgunner Joe]

These problems have indeed been exacerbated by the removal of God from the public square, and the false assertion that religious morality cannot influence the law.

Italy is not a theocracy. Vatican City is.

[GoLightly]

Giving churches and other religious organizations tax-exempt status is granting them a legal exception based on their religious beliefs.

The exemption is based on "promoting the common good". You want to create a federal test of what that is & how it will be allowed to be expressed. That reaches far beyond community standards. Is that your intent?

If you want to give everybody tax-exempt status, I'm all for it.

Might I interest you in one of my 10 Commandment monuments? I'll make it small enough that it's not too obtrusive. We got a court ruling that says all you need to do to establish a religion is dropping one of those suckers on a piece of land under your control...

[jwalsh07]

The 'discrimination' portion of this statement is remarkably similar to the argument the SCOTUS rejected in the Equal Protection portion of Loving v. Virginia: that Virginia's anti-miscegenation law didn't 'discriminate' on the basis of race, because it applied equally to blacks and whites and imposed the same penalties on each.

That would be false. Race baiting doesn't win you any points. Marriage has always been the union of one man and one woman in America whether you like it or not. When the government changes that meaning to one white man and one white woman, they abuse the meaning of the word just like you would by changing it to mean the union of two people. Words and sentences have meaning.

(Just as, according to Anatole France, one of the majesties of the law is that it equally forbids both the rich and the poor to sleep under bridges and beg for bread.) The SCOTUS didn't find that very convincing.

Great!

However, the Equal Protection Clause isn't what's fundamental here anyway;

Of course not because you and your fellow travelers can not make a case that marriage violates the clause even looking deep into the penumbra. Any man or woman can marry any indivdual of the opposite sex according to the parameters of the state. To find discrimantion there, you really have to twist the meaning of words and that's exactly what activists like you do. You find rights and discrimination where none exists as long as finding them advances your particular ideology.

it's the Due Process Clause (as you implicitly acknowledge in your remark about liberty interests; that's where those are currently adjudicated). And under current Fourteenth Amendment jurisprudence (with which I realize you may not agree), the right to marry is not a 'liberty interest' but a fundamental right, state interferences with which are subject to strict scrutiny.

Marriage is indeed a fundamental right and Congress has defined it as the union of one man and one woman in various acts through the ages with SCOTUS upholding it as constitutional. And indeed it is because nobody's rights are abridged. Special rights have just been granted in CT to same sex couples who can now avail themselves of civil unions. The law is patenetly unconstitutional because it is written for one group of people while excluding many others with no rational basis. But hey, who cares it's the ideology that counts.

That fact is important for another reason. I realize a lot of people have a sense that 'getting married' somehow confers a societal blessing on a couple and therefore sounds like approval of their marital union. That's probably true of religious marriages. However, if the (civil) right to marry another unmarried consenting adult really is a right, then exercising it doesn't require -- and therefore doesn't involve -- any societal approval of one's choice of spouse.

Except that in order for a right to be recognized as a "fundamental right", that right has to be grounded in the history and traditions of America. The history and tradition of American marriage is one man, one woman. As for your argument that the "right to marry" is somehow an absolute right, I can just smile. You know that there are no absolute rights.

I think that same-sex couples are entitled to precisely the same legal recognition and protection as opposite-sex couples, up to and including civil marriage (note that I didn't say 'civil unions' or 'domestic partnerships'). While you're certainly entitled to think that there is no basis for constitutional nor historical basis for imposing it.

I've already made it quite clear that you can think what you want. What you and activists courts can not do is change the meaning of words nor the "history and traditions" of this country for your own ends and call it constitutionally grounded.

I think there was a Constitutional basis for it even before Lawrence (as an extension of the fundamental right to marry), but Lawrence makes the argument much easier. Again, though, I realize that you probably disagree with Lawrence and won't find an argument based on it very compelling.

Absolutely correct. Kennedy's holding in Lawrence was comedy. It was a simple case of equal protection turned into judicial mischief by Kennedy and his transcendent liberty interests. Scalia tears it apart in his dissent much better than I can. But suffice to say that nowhere in Lawrence does the court declare homosexual sodomy to be a fundamental right or a fundamental liberty interest which kind of kills your argument here dead.

Here's the skinny of it anyway. Married couples enjoy all sorts of legal protections, some of which even involve due process rights directly (the two spousal testimonial privileges, for example), generally for the purpose of protecting the privacy of their relationship from unwarranted government intrusion. Because Lawrence was decided on the basis of a liberty right to enter into and maintain an intimate relationship with a partner of one's choice, it indicates that same-sex relationships deserve the same sorts of privacy protection (again including those due process rights) as opposite-sex couples as far as the Constitution is concerned. (It also means that laws positively forbidding legal recognition of same-sex unions in any form are unconstitutional from the get-go.)

Undoubtedly Kennedy is trying to accomplish just what you descibe here bu he didn't go quite that far in Lawrence. If he had, he would have simply stated that their was a fundamental right to sodomy. That he didn't go that far doesn't mean that he didn't want to but the fact is that he didn't.

That gets us to a degree of legal recognition for same-sex civil unions. At that point, the Equal Protection Clause indicates that the law can't discriminate between same-sex and opposite-sex unions by giving them 'separate but equal' status; civil marriage has to be civil marriage, and that's that.

Heterosexual marriage is non discriminatory, civil unions confined to same sex couples while excluding blood relatives is discriminatory. You have it exactly backwards.

I don't expect you to accept that argument, and of course I don't dream for a moment that I've given an adequate summary of it in this post. Nevertheless I think I've said enough to show that there's some Constitutional basis for my opinion.

There is a Constitutional basis for sticking a scissors in the neck of full term babies and sucking their brains out, or so they tell me, so you don't have to convince me just how activist the courts can be. Believe me, I understand it perfectly.

[jwalsh07]

One other thought.

Assigning 9 people the power to decide liberty interests for the nation destroys the notion of a Constitutional Republic and federalism. I should think it would be self evident that no matter which side of the fence one sits on, that is not a good idea.

[risk]

Marriage is indeed a fundamental right

How so? Isn't it different from freedom of speech, or liberty of movement? After all, the couple go to the courthouse and ask for a certificate of marriage from the state. The state ponders the request, perhaps calls for blood tests, and asks a few consanguinity-related questions, and then maybe offers approval.

Christian weddings call for the congregation in attendance to announce any objections they might have.

Do two people have any right to demand from their community approval for their intent to marry? I say not. Marriage is a privilege offered by the community by its very definition: it is a licensed status.

There are very few "rights." I think if you call marriage one of them, it opens us up to all kinds of problems. Of course I'm in the minority; by now, there are probably people calling for polyamorous marriage licenses.

[risk]

I think there was a Constitutional basis for it even before Lawrence (as an extension of the fundamental right to marry), ...

I just don't see it this way. There's no fundamental right to marry. There's a relationship between my arguments on the 10 commandments case here. Marriage asks the state to approve of a relationship. By approving of a relationship, the state is announcing that it, and in effect, every citizen approves of the relationship. We know that most people disapprove of these relationships, so we're having an immediate problem with consent of the governed!

Marriage affords legal protections, monetary benefits, exceptional financial access to one another's property, and a whole host of other rewards that require others to make sacrifices on behalf of the couple.

To require approval and financial supports from the state to couples that most Americans find immoral or even revolting is a gross violation of the state's obligation to representative government. There is simply no right to marry. Marriage is a privilege and a collective approval for a given licensed couple. That marriage is now discussed as a fundamental "right" is evidence that we've gone mad over rights, rights for everything. The UN's declaration of human rights calls for a right to leisure time!

[jwalsh07]

I don't make these things up.

See Loving v Virginia and Zablocki v Redhail (1978).

[risk]

I tend to agree with your comments. To them, I would add tradition as a reason for our civil support for couples in building their families under the auspices of state license. The key concept is "collective approval." No one has an inborn, sacred human right to marry anyone he chooses. He's asking his state for approval. I hold forth strongly that there are absolutely no rights for people to ask for collective approval of that which the majority finds reprehensible.

[risk]

It sounds like people describing driving an automobile as a right (link: Zablocki v Redhail) because it's hard to function in society without it. It's hard to live a happy life without shacking up with someone and getting support from the state to do it. So the activist courts have decided for us that it's a human right.