Gay Marriage and Abortion
The Wall Street Journal kindly ran my piece today on the gay marriage decision in California. It makes some of the same points first floated among the discussion of the case on Ricochet -- that the Constitution allows the people of each state to decide whether to allow gay marriage.
One point became clearer to me. If one were a supporter of gay marriage, as I am as a voter, I would still prefer federalism over judicial imposition. State by state voter choice would lead, I think, to a more durable political consensus. Once a series of state legislatures or state initiatives approve gay marriage, it would be unlikely (I think) that the states would reverse themselves. Gay marriage wouldn't hang on the vote of a single Justice on the Supreme Court, and his or her longevity.
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Jun '10
Re: Gay Marriage and Abortion
Even though, as a voter, I would oppose the legalization of gay marriage, I agree completely with Professor Yoo's argument that the issue should be left to the voters (and then let the chips lie where they fall). Neither Judge Walker nor any other judges should not be the arbiter of this issue.
May '10
Re: Gay Marriage and Abortion
Professor Yoo -- I have come full circle to your view thanks to the discussions that have been hosted by yourself, Prof. Epstein, Mollie and James, Peter, et.al. I started from a place where I considered the separate application of privileges from the Federal government unequal and thus unfair, but have been persuaded that the logic of my view could lead to a logical unraveling of other societal structures.
But the icing on the cake is your last point. It's alright when the judge agrees with you, but what about when s/he does not. With something so new and so nuanced, personal, and complex, it makes sense for folks to decide for themselves at the ballot box. And while California feels like too large a voter group for my own taste, I grant that the Constitution makes the states the logical unit for deciding this matter.
It's not that my opinion changes anything or matters very much -- but it reinforces for me the value of this unique and special venture Ricochet.
Jun '10
Re: Gay Marriage and Abortion
When the decision is up to the people, as it should be with gay marriage, it's also a fools errand to attribute a religious motive to all the opponents. Different people have different motives, and what drives their choice is their business. And even if a statute starts life based on a religious motive, it may persist based on entirely different motives, as in:
(from: http://online.wsj.com/article/NA_WSJ_PUB:SB122592581001202837.html)
Excerpt:
In Maine, Minnesota and Colorado, plus 11 other states and assorted counties, at least 80 million Americans can kick tires on Sundays but can't sign on the dotted line. Even in Detroit, you can't buy a car on Sunday. It's against the law. [...] Who's behind this assault on free enterprise? Churches? Unions? No. It's the automobile dealers themselves. In locations where laws ban Sunday car sales explicitly, manufacturers have stayed neutral while dealers not only like the bans, they lobby for them. Blue laws, which are disappearing fast, have a religious genesis. Car laws simply impose an official timeout from competition. That way, everybody can relax and take a day of rest.
Re: Gay Marriage and Abortion
But Professor Yoo, I respectfully suggest you are ignoring that the reason we are a Constitutional Republic and not an Athenian Democracy is to deal with situations just like this.
Two wolves and a sheep voting on what to have for lunch is Democracy, but Democracy will surely fail the sheep. In a Constitutional Republic, there are some votes the wolves just don't get to take.
Marriage is one of them.
Hypothetical: Were my friends and I to out-number you, and hold a Democratic vote that you were not allowed to marry, would you concede our right to have that vote, considering that the pursuit of happiness is a right "unalianable?"
Jun '10
Re: Gay Marriage and Abortion
Justified Right: In a Constitutional Republic, there are some votes the wolves just don't get to take.
Marriage is one of them. - Aug 12 at 1:31pm
That assumes a protected class, beyond just human. "Gay" is not a protected class.
Re: Gay Marriage and Abortion
Justified Right,
Do you extend this hypothetical to situations such as polygamy or incest? I imagine you do -- but if not, I'd be curious why not.
Jun '10
Re: Gay Marriage and Abortion
I agree that a majority vote should never be allowed to take away or deny an unalienable right. Because of this principle, the claim “it’s a right” has become the ultimate trump card in American politics, thus to cite 3 recent examples we have lobbies claiming a “right” to (a) same sex marriage, (b) abortion on demand, and (c) free health care. Does asserting these as rights make them, in fact, rights? If not, who decides? A majority vote? A single federal judge? Perhaps we should just dispense with all pretenses and acknowledge Anthony Kennedy as the first Supreme Dictator of the United States.
Jul '10
Re: Gay Marriage and Abortion
Mollie Hemingway: Justified Right,
Do you extend this hypothetical to situations such as polygamy or incest? I imagine you do -- but if not, I'd be curious why not. · Aug 12 at 2:46pm
If the people of the sovereign state of Utah choose to allow polygamy, so be it. If the people of New York choose otherwise, fine by me
Which is the greater evil? To have the people of some states make choices that offend the moral sensibilities of the people of other states - or to have elites in Washington make those choices for everyone?
Aug '10
Re: Gay Marriage and Abortion
Justified Right: considering that the pursuit of happiness is a right "unalianable?" · Aug 12 at 1:31pm
Well, one of the complicating issues is that a right is supposed to be something that doesn't impose obligations on others, right? (I mean, at least if you're an adult. A child's right to live imposes an unavoidable obligation on the parents.)
There's no law against Californian gay couples entering into civil union and then calling themselves married, because they believe they are (in the eyes of God or whatever). Is there?
But from what I understand, the chief difference between civil union and legal marriage in California is that those legally married can collect federal benefits, which imposes obligations (taxes) on other people.
So it would seem that legally-recognized marriage, which provides a unique license to collect benefits and thus to impose obligations on others, is a privilege (rather like a driver's license) and not a right.
I'm not sure I entirely buy my own reasoning here, though. What do you guys think?
Aug '10
Re: Gay Marriage and Abortion
Oh, I should clarify: when I said "obligation", I meant "positive obligation". Obviously our right to live imposes the obligation that others should not kill us, property rights impose on others the obligation not to violate them, etc.
Jul '10
Re: Gay Marriage and Abortion
Kenneth:
"If the people of the sovereign state of Utah choose to allow polygamy, so be it. If the people of New York choose otherwise, fine by me"
But of course it can't end there, can it? Not if the "sovereign" state of NY must give full faith and credit to polygamous "marriages" performed in UT. Let's not pretend that federalism is some magical barrier when it isn't.
Re: Gay Marriage and Abortion
@etoiledunord: You don't need to be in a suspect class to have rights. If you happen to be in one, you can get a different standard of judicial scrutiny for your alleged equal protection violation. But you certainly don't have to be in one to claim equal protection (they level of judicial scrutiny for the government action denying you will just be different).
Re: Gay Marriage and Abortion
@Mollie Hemingway: You've rasied a VERY interesting point. I remember once seeing Barney Frank wax on about the bad reasons people are against gay marriage, and when asked why he wouldn't support polygamy, he used those very same bad reasons against those people.
Using my analysis, I can't find a reason to reject polygamy. If I were to oppose polygamy, I couldn't do so without pointing out my own hypocrisy. On incest, there is an argument to be made that the risk of retardation of offspring is so elevated that a ban on incest is in the government interest to protect the third party (the future child).
As I said though - great point Mollie! People who argue for gay marriage stumble on polygamy, and generally won't admit their obvious hypocrisy.
Re: Gay Marriage and Abortion
@Joseph Stanko: You raise an interesting point. To me EVERYTHING is a right. That comes from being born free - as expressed in the Declaration of Independence. More importantly, the D of I says that freedom (therefore my right to it) comes from the Creator. I don't get my freedom or rights from other men, or God forbid - other men's government.
Were I to live alone on an island, that's where it would end. But introduce one more person to that island, and my freedom bumps against his. So we form a government to curtail each of our God given rights and concomitantly protect our rights from the trampling by the other guy, and the third guy we now have (the government).
So yes - gays are free to marry, and there is no reason for government to curtail that freedom. Yes a woman is free to abort, but there is a strong reason for government to curtail that freedom, because she is obliterating the freedoms of a third party (her baby) when she does. A person has the free speech right to demand health care, but not to have it because it creates a forced servitude on others.
Re: Gay Marriage and Abortion
@Midget Faded Rattlesnake: Great point point raised by you. I think the answer to the question you present lies in equal protection. If gevernment largess is given out, should we exempt people based upon genetic make-up? I don't think that passes the constitutional muster.
Of couse that gets us back to Mollie's point - what about polygamy. Do the benefits extend to all spouses? The penchant for fraud is a worry there.
I'm not sure what federal benefit one gets from marriage though. There's actually a marraige penalty tax-wise if your income is similar to your spouse's income.
Jun '10
Re: Gay Marriage and Abortion
Thanks! You raise an interesting point too, but I see a few flaws with it. First, the Declaration says we are endowed with "certain" rights, not "every conceivable" right. Second, while I agree that our rights are God-given, isn't this inherently a religious claim? And Christianity, Judaism, and Islam all agree that God does not approve of homosexual acts. Can we really maintain that God would endow us with an unalienable right to commit sin?
Re: Gay Marriage and Abortion
Jefferson used "Creator" and "Nature's God" as opposed to "God" for a purpose. "Creator" covers not Yahweh/Allah and all the other deities, but if you were created by a random coming together of chemicals in space, that's covered too.
The point is not in who did the creating, but the fact that I was created. It's an extention of "I think therefore I am." Instead: "I am, therefore I have rights." That's not religious.
As to "certain" rights, that modified "unalienable." "Certain unalienable rights." The rest of them (the ones that are alienable) are still a function of freedom. All my rights are naturally endowed.
Even if it were religious, as to your last point, as a Catholic I don't see Jesus calling homosexuality sinful in the Gospels (although it is negatively mentioned in other parts of the New Testament, none are mentioned as a teaching from Jesus).
It's certainly a rule of the church, but that comes from the papacy, not Jesus. Therefore the prohibition against homosexuality is based in religion, as opposed to the freedom one has to have homosexual relations, which is not based in religion.
Re: Gay Marriage and Abortion
The above should read "Not ONLY Yehwey..."
Jun '10
Re: Gay Marriage and Abortion
But how can a "random coming together of chemicals in space" endow all men with equality and unalienable rights? How is that "self-evident?"
Jun '10
Re: Gay Marriage and Abortion
Jesus did define marriage:
But from the beginning of creation, 'God made them male and female. For this reason a man shall leave his father and mother (and be joined to his wife), and the two shall become one flesh.' So they are no longer two but one flesh. Therefore what God has joined together, no human being must separate." (Mark 10:6-9 NAB)