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| SCOTUS Justice Anthony Kennedy & Others |
The Year of Gay Agenda Activist Judges
This is the first year of this mock award, but obviously there was an unofficial winner last year in Chief Justice John Roberts' baffling ObamaCare majority decision, ruling it was acceptable under the Congress' broad tax authority.
I have, and will continue to be, for the traditional definition of marriage (i.e., between a man and a woman). To be honest, I don't like the State intervening in the traditional private sector institutions of marriage and family; I would rather see issues delegated to/resolved in the private sector, e.g., a religious affiliated arbiter. However, within the context of a democratic republic, I don't have a problem with the majority expressing its preferences in the law, e.g., with respect to social norms. Take, as an example, a restriction against public nudity in a community. In a libertarian context of free association, I have no problem with nudists creating their own communities with laws reflecting their own preferences; liberty means you have a right to live within a community reflecting your values. I don't object to the concept of a homosexual- or polygamous-friendly community--or a state in greater scale. And I generally don't agree with a majority infringing on or prohibiting an individual's privacy or freedom to associate, which I consider fundamental. If the community wants to restrict bars or adult stores near churches or schools, I think that's a reasonable accommodation.
I generally oppose the State itself discriminating in policy, e.g., prohibiting gays from standing from election. At the same time, I oppose tampering with preexisting institutions like marriage and family. These institutions developed over time and across cultures and were not established by the State but rather recognized by it; they are not arbitrary, but integrally tied to societal stability and self-preservation. I worry about the unintended consequences of the State tampering with traditional institutions. I have supported tolerance and/or recognition of alternative relationships, e.g., civil unions or domestic partnerships; however, I am less receptive on the issue of positive rights/liberties, i.e., things that a government or others must do on behalf of individuals or groups. This is different from negative rights/liberties, which is protection from the State or others infringing on your fundamental rights; one can argue for tolerating nontraditional relationships without insisting they be accorded a socially preferred status. I think that using the courts to impose marriage-like status to nontraditional relationships is not only a bad and dangerous, potentially destabilizing precedent, but fundamentally unacceptable State intervention on social norms.
I would say that the predominant libertarian position, as in the case of abortion, which I also oppose, is different that mine, and something I find as intrinsically paradoxical; I've pointed out that Cato Institute has issued commentaries hyping polls, arguing a contagion for the issue. Libertarians operate usually on principle and don't accept polling with findings infringing on fundamental rights. I have always that that it was intrinsically self-contradictory to argue prohibition, say, against states deciding on a traditional marriage standard and that instead of calling for a repeal of federal marriage laws, they want to add regulation of alternative relations. (For similar perspectives on one or more of the above points, see here and here.)
There are a couple of points I want to make with respect to DOMA and California Proposition 8. DOMA did not ban states from recognizing "gay marriage"; it also did not change the de facto federal standard of marriage, since all 50 states had traditional marriage laws at the time of DOMA. The main question motivating DOMA was not denying nontraditional parties any rights they already had; it was more about defending the states' tenth amendment responsibility of regulating marriage against backdoor "equal protection" legal assault, e.g., a Texas gay couple "marrying" in Massachusetts and suing Texas to recognize it.
The issue of Prop 8 had more to do with activist judges on the California Supreme Court throwing out the existing state regulation of marriage, arguing on a technicality that it was defined in the state constitution in a way vulnerable to their review. Now keep in mind traditional marriage had been the law during the entire existence of California. Either the people had a right to establish marriage law or not; either they had a right to establish criteria (the type of qualifying relationships) or not. If they had the right to exclude nontraditional relationships, when did this stop? From a libertarian perspective, when did a voluntary group lose its authority to set or recognize social norms? How do we address a judicial prohibition on establishing state preferences, including but not restricted to marriage? (Apparently pornography comes under state morals regulation, but not marriage...)
Prop 8 was not an attempt to repeal California's existing status for gay domestic partnerships but to restore the traditional marriage definition previously voted into the Constitution. As you may recall, sore loser Prop 8 opponents filed suit in federal court; the Governator and then Attorney General Jerry Brown refused to back Prop 8 in court, an unconscionable refusal to carry out their sworn responsibilities as state officials. So an alternative group defended Prop 8, which became a salient issue in the appeals the followup, a legal technicality referred to as standing. A gay federal district judge ruled Prop 8 was unconstitutional; any ethical judge would have recused himself from the case given its reflection on his lifestyle, but the appeals court refused to acknowledge the obvious.
SCOTUS basically rejected the Prop 8 appeal and the part of DOMA effectively not recognizing newly gay-friendly state marriage laws. (The case used for this is questionable because it focused on inheritance tax policy on a gay lesbian widow; what's confusing to me is that New York had not yet recognized "gay marriage" (this wedding was performed in Canada) at the time of the partner's death.) I had predicted the latter result. For the real purpose of DOMA, essentially protecting the state's sovereignty on marriage law, SCOTUS sidestepped the issue and did not find (at least yet) a so-called constitutional gay right to marry.
I did not care for Justice Kennedy's politically correct, strident rhetoric and felt that the decisions were conceptually muddled, backing state sovereignty in the DOMA case but rejecting it in the California one.
But Justice Kennedy merely opened the door for the backdoor judicial activism for the gay political agenda. We have now seen atrocious attacks on business owner's economic and religious liberty. I'll just list 3 here: Colorado judge Robert N. Spence recently ruled that a Christian baker cannot refuse to sell a wedding cake for a "gay wedding" reception; a Gresham, OR bakery closed after a lesbian couple complained to a relevant state commission over the bakery's refusal to sell a relevant wedding cake; and the New Mexico Supreme Court ruled against a photographer declining to provide her services for a lesbian couple.
