Politics: February 2011 Archives

Am I the only one who sees the irony in Democracy For America rallying in favor of "workers' rights" to collective bargaining? A right of public employees to collective bargaining is a right to force government to negotiate in a way that the democratically elected government and the voters may oppose, which isn't democratic at all.

President Obama says that the Defense of Marriage Act is not constitutional.

The reason why is essentially that because gays have been discriminated against, we can't discriminate against them, because -- the logic goes -- we can only discriminate against people who haven't been discriminated against.

Sure, AG Holder wraps that in some legal language, about standards of scrutiny and so on, but it's the bottom line of the argument.

This flow of logic is a bit troubling. Most obviously to me, it means that any group with a history of discrimination must be allowed to marry unless there's a good reason not to allow them, which, like it or not, logically absolutely must include incestuous marriages between consenting adults. Without question, incestuous couples have been subject to massive discrimination, and since -- with modern medicine -- there's no significant health reasons to prevent such marriages in the general case (and because with gay marriages, we've eliminated procreation as a significant factor of marriage anyway), there's certainly no more justifiable basis for discrimination against incestuous marriages than homosexual marriages.

(As a side note: if we did consider the procreation dangers of incestuous couples to be a legitimate reason to continue to ban such marriages, I suppose it means that the only incestuous marriages allowed would be homosexual ones, which don't have that potential problem.)

More deeply, I have a problem with this understanding of the 14th Amendment, in which we can justify almost anything we want to based on "equal protection" and "due process." It is an extremely poor way to make law, in which no one really knows what the law is until some people in robes decide what is and isn't fair depending on how they decide to scrutinize it, which is necessarily arbitrary: once you start down that path, where there's no actual legislation to guide you, you're going to rule based primarily on your opinions. This is the rule of man, not the rule of law, which is inherently unjust, and our current interpretation of the 14th Amendment unfortunately encourages such unjust lawmaking.

What bothers me most about this picking-and-choosing style of jurisprudence is that it seems to me entirely contrary to the whole concept of equal protection: it shouldn't be about whether something is justified, it should simply be about whether someone is equally protected by the law. If they're not, then the law needs to be fixed. But keeping it arbirtary allows them to justify discrimination against white heterosexual males, while abolishing it against lesbians, because of some concept of fairness some judges invented for themselves.

The question here, to me, is whether the treatment is actually unequal. On this, there's two points: the first is whether being excluded from legal recogniition of marriage is inherently unequal, and this is a tricky question. I don't think it is unequal, any more than allowing only certain holiday displays in the State Capitol is unequal. In itself, "civil marriage" is just a label, and it's entirely symbolic, and I don't think it rises to the level of unequal treatment.

What matters, and what I have a problem with, is how that symbolic label "civil marriage" is used by government, specifically, in that some rights and privileges between consensual unions of people are reserved only for married couples: not that there is a natural right to have your marriage recognized by government, but that if some people are granted that right, then it's unfair to exclude other people. I do believe it is wrong, and should be fixed (and in Washington, has been fixed*). Government shouldn't pick and choose how personal relationships legally stand before government. Frankly, I find it offensive and weird that government even cares about the nature of my relationship with my wife (and I recoil when I am told by gay activists, like Andrew Sullivan, that they want government to officially recognize their love for their partner ... that's just creepy, gay or straight).

As such, as I've noted before, government "marriage" should really be abolished, and we should move to a system whereby if I want to get government recognition so that I can get rights, obligations, and privileges reserved for "civil unions," then I tell government that my partner -- whether same or opposite sex, and completely regardless of the nature of the relationship, whether romantic or familial (or, ew, both) -- is my partner, and we get those benefits, whatever they are. Simple. Let social institutions worry about whether those things are "marriages" or not: government shouldn't care.

Agree with me in this or not, the sad thing about President Obama's position is that it calls attention to the inherent inequality of the system of reserving benefits only for certain people, while simply broadening it, and thereby further institutionalizing that unequal -- and by his own words, unconstitutional -- system. Obama's like one of the leaders of Rock Ridge in Blazing Saddles: "Alright, we'll give some land to the Niggers and the Chinks, but we don't want the Irish!" This is the problem with how we use due process: being gay is not as offensive to us as it used to be, so we no longer see gay marriage bans justified; but we still see incest as wrong, so we continue to ban it. It's patently unequal, and yet we perversely use "equal protection" to justify it.

Look, if you really believe that two people who want to share their lives with one another should be recognized by government, fine, but don't be hypocritical by pretending that your argument only applies to gay couples.

Frankly, I will not believe anyone -- whether President, Supreme Court Judge, or gay activist -- when they say they believe that gay marriage bans are unconstitutional, if they focus only on legalizing gay marriage, and not all consensual adult marriage, because if they really believed it, that's what they'd do.

* This is where some people might whine about "separate but equal." If you have equal rights, but separate names -- "marriage" vs. "civil union" -- then it's separate, and therefore unequal, they claim. But this flawed understanding is based on a previous racial system that was definitionally unequal: if you have to go to a different water fountain, then you're not really being treated equally. But in Washington, literally, gay couples have all the same rights. The only difference is the name. They can't point to any actual differences in how they are treated by the law. Comparing it to the "separate but equal" civil rights problems of a half-century ago is intellectually offensive in its wrongheadedness, and perhaps worse, directly offensive to the people who actually fought that fight.

A word on severability clauses: in general, the little-c conservative, humble, judicially restrained thing for a court to do is to throw out an entire law when ONE part of that law is thrown out.

That may seem backward to some people, but it's not. Imagine a law that says all income from Washihngton State residents is subject to a five percent tax. Then later in the law, it exempts the first $200,000 of income. There's no severability clause in the bill. Now, in Washington, our precedents say that income is property, and all property of a certain type must be taxed uniformly; therefore, the exemption is illegal (even if you disagree, just go with it for the sake of argument). Now, if we follow the idea that you should leave laws intact except for the illegal parts then the exemption would be removed, and suddenly, everyone in the state is hit with an income tax.

So now in effect, by removing that one part of the law and leaving the rest, the law has been changed substantially from its intent, and the court has, in effect, created a brand new law.

(This is precisely why, in the case of I-1098, the income tax initiative had a severability clause, but exempted the exemptions portion of the initiative: because if the exemptions were thrown out, its authors wanted the rest to be thrown out, too, but if any other part was thrown out, they wanted the rest to stand.)

Of course, a judge's judgment comes into play here, and absent a severability clause, he needs to try to figure out whether he is creating new law or just striking down a part of the law that won't substantially change the rest. So he looks for clues, in the text of the law, in the intent of the lawmakers, and in testimony.

In this case, all three point to the idea that -- in the case of the mandate -- severing it would create a new law that is far different from the intent of the lawmakers who voted for it: the whole point of the law, supposedly, was to create a financially sustainable system for providing health insurance, and everyone has told us that without the mandate, that system as designed in the law won't be financially sustainable.

And maybe you could strike down the "free" health insurance for poor people, and keep many of the regulations, but now you're trying to implement only half a system that maybe the lawmakers wouldn't have approved of.

In other words, it is activist to not strike down the entire law, because you're literally creating a new law and assuming that the lawmakers would have wanted it that way. Picking and choosing from the law is legislating, which is precisely why our President doesn't have, and never will have, a true line-item veto. It would be hypocritical and bizarre for the Supreme Court to strike down only part of the health insurance law after saying a decade ago: If the Line Item Veto Act were valid, it would authorize the President to create a different law, one whose text was not voted on by either House of Congress or presented to the President for signature. Something that might be known as "Public Law 105-33 as modified by the President" may or may not be desirable, but it is surely not a document that may "become a law" pursuant to the procedures designed by the Framers of Article I, 7, of the Constitution.