Judiciary Archives

In June of 2013, the Supreme Court’s liberals declared that the Defense of Marriage Act, which was passed by Congress and signed by President Bill Clinton, was unconstitutional, because, as they said, the power of the individual state in defining marriage is “of central relevance", and the decision to grant same-sex couples the right to marry is "of immense import." Basically, it’s the state, and not the federal government, which should determine what marriage is and license accordingly.

Two years to the day later, those same liberals overrode those immensely important marriage laws in 14 states and proclaimed same-sex marriage from the federal bench. And it once again proves something I’ve said on this podcast so many times; for the Left, it is all about politics. Constitutional matters, federalism, and some supposed regard for the rule of law, all of it, take a back seat in order to get their political agenda passed. The individual state’s ability to define what marriage is, is of central relevance, right up until it isn’t.

Chief Justice John Roberts, in his dissent, noted this, "This court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us.” Right, that’s what states were allowed to determine on their own, and in fact it was going that way with, as I said, only 14 states left holding on to traditional marriage.

I will say, as an aside, that this thought by Roberts – that the court is not a legislature – was rather ironic, given his previous rewriting of ObamaCare. It’s like two, two, two Supreme Court chief justices in one!

Let me ask you this; which would have been better? Should the Court have allowed same-sex marriage to work its way through the culture, gaining support as it had been doing, or do what it did and just impose it by judicial fiat? Before you answer, consider how well that worked for abortion. It is still a hard fought battle in the culture, and in the state legislatures as well. Rather than let it organically happen democratically, abortion was imposed, and the backlash has been with us ever since. I oppose abortion, and I also oppose a government that will override me and my state’s rights to govern ourselves. I oppose same-sex marriage, but again, the Court’s liberals (and if I may, it seems that liberals in general) have no problem holding state law immensely important one day, and the next day overruling them, so long as their political agenda is served. As I mentioned in the previous episode, the process is just as important as the outcome, and the process, both here and with the ObamaCare ruling, are deeply flawed and set a bad precedent for future courts to reinterpret words, and override the will of the people.

There have been many predictions about what comes next. Some, on the pages of TIME magazine, are already pushing polygamy. That effort has been going on for years, but it got a boost with this ruling. There are those already calling for the abolishing of tax exempt status for religious institutions – churches and religious schools – that won’t teach the liberal orthodoxy about same-sex marriage or won’t perform them. These are likely coming down the road. But, as Erick Erickson noted, the first thing to come will be … silence. The day of the ruling, a newspaper in Pennsylvania said they wouldn’t print letters to the editor on the topic anymore. I have a friend who, when asked what the Bible says about homosexuality, gave a straight answer (so to speak) and was immediately pounced on for being bigoted and hateful. You don’t have to thump anyone with a Bible anymore; it just has to be in the room for someone to claim you’re evil.

So silence will fall, but just because you don’t hear a particular opinion anymore doesn’t mean it’s not there. However, if a baker or a photographer can be put out of business for not participating in a same-sex wedding, how much more of a target are those churches that won’t perform them for what 5 justices have now deemed is a “fundamental right”?


With the ObamaCare and the same-sex marriage rulings, the court has done two things. It has taken power away from you at both the federal and state level.

If you ever complained that Washington, DC was unresponsive to the needs of the people, the ObamaCare ruling should bother you, at the very least. That is, unless you’re celebrating the topic of the ruling, then the process is likely nothing you’re concerned about. I’ve seen it in my Facebook feed. However, from this day forward, federal agencies like the IRS, and all the way up to the President, don’t have to restrain themselves to the actual wording of the laws Congress passes. ObamaCare said you got subsidies through exchanges established by the states, but an unelected federal agency changed that. Your representatives, and by extension you, have lost more influence. The government can do what it wants.

And if you ever complained that your state government was unresponsive to the needs of the people, the same-sex marriage ruling should bother you, too. But again, the winners are too busy celebrating to see how this, too, has erased their influence and yours at the state level. It just takes 5 Supreme Court justices to invalidate anything a state does. Vote however you want, call your state representative as much as you want, but in the end, a majority of 9 unelected justices get the final say for over 320 million people. One man, one vote, indeed.

If you celebrate these rulings, and if you’ve ever been a proponent of power to the people, or you’ve ever put forth the idea that every vote should count, you either have not been paying attention, or have no idea at all what those phrases even mean. At least, I’d really hope that this can all be explained by ignorance and apathy, because the alternative is worse; willful misuse of the founding principles of this country, and that will bring us down faster than any law you can pass.

The Left loves the platitude “Government is just another name for the things we choose to do together.” Of course, by the phrase “choose to do together”, they mean “use a panel of 9 lawyers to force everyone to do what they want”. Platitudes are useful in the meantime, but in the end, for the Left, it’s all about politics.

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    The Supreme Court case, King v Burwell, was essentially a question of whether the ObamaCare law would be interpreted as written, or as it was meant to be written, as best as the justices could divine the intent of Congress. The particular issue was whether the IRS could provide subsidies to those who needed them in states where they had their own health insurance exchanges, or in all states, even if they didn’t have an exchange.

    What the law said was that the IRS would administer those subsidies through the exchanges “established by the states”. However, what the IRS did was to funnel them through state and federal exchanges, which is not what the law, y’know, actually said. They essentially reinterpreted the law to mean that exchanges not established by the states qualified as exchanges established by the states.

    Some states said, no, that’s an unconstitutional reading of the law. There are other places in the law where it specifically refers to the states and the federal government combines, but it does not here. That is true. Here’s something else painfully true; this particular wording was exactly what was meant when the law was written.

    How do we know this? Jonathan Gruber, the well-paid architect of the law itself, told us so. It was a classic carrot-and-stick approach. The carrot was billions in tax dollars. The stick was that if you didn’t set up a state exchange, you wouldn’t get any of it. There a link in the show notes to a video explaining all this and him saying, “I hope that that’s a blatant enough political reality that states will get their act together and realize there are billions of dollars at stake here in setting up these exchanges.”

    This was not a case of trying to read a crystal ball and discover the intent. This was not trying to reach into the minds and writings of the founding fathers and trying to glean what they meant on some obscure constitutional point. You can’t search YouTube to find out what Washington and Jefferson were thinking, But Gruber is all over the Internet, on and off the record.

    This was a game of chicken. Would the states blink first, and all setup exchanges, or would the feds blink and change the law. As it turned out, the fed’s blinked, but instead of changing the law, they just did what they wanted, and the IRS (which, last I checked, was not part of the legislative branch of the government) ruled that it would provide subsidies through the federal exchange as well.

    And Chief Justice John Roberts and his cohort said, “Eh, seems legit.” OK, the ruling was a bit longer than that – 21 pages longer – but in the end that’s what they did. They claimed that if the subsidies were stopped it would ruin the implementation of ObamaCare, ignoring completely that that was the point all along.

    Justice Scalia, writing in his typically entertaining dissent (which is basically the high point of this whole ruling), said that if an exchange not established by a state is actually an exchange established by a state, then words have no meaning. Truer words, that do have meaning, have never been spoken.

    I don’t think those who are celebrating and praising this ruling have any idea at all what it could mean in the future for the power government has over us. And by “those who are celebrating”, I mean, generally, Democrats. The process, however fatally flawed and upside down it is, doesn’t matter as long as they get what they want. It’s always about politics.

    From this point on, federal government agencies can now interpret the law any way they please. Really. Restrictions that were in place in the ObamaCare law were cheerfully ignored in furtherance of a political agenda, and the Supreme Court gave them 6 thumbs up. George Will, writing at the Washington Post, put it this way.

    The most durable damage from Thursday’s decision is not the perpetuation of the ACA, which can be undone by what created it — legislative action. The paramount injury is the court’s embrace of a duty to ratify and even facilitate lawless discretion exercised by administrative agencies and the executive branch generally.

    Theprocess has been butchered by this ruling. Sure, ObamaCare proponents got what they wanted, but at a price to their own power as a people that I’m sure they are blissfully unaware of. The political process of a government restrained by law, influenced by the people, which has been slowly eroding anyway, just did a nose dive.

    You say lobbyists have too much power? I’d agree, because they just had to go to one place – Congress – to spend their dollars budgeted for graft. Now, they can bypass the middleman and go straight to the IRS or any other federal agency and bribe an unelected bureaucrat. And that bureaucrat doesn’t have a campaign coffer he or she needs to keep funded, so it’ll be cheaper for the lobbyist. It’s a win-win! But remember, you don’t figure into either of those two wins.

    Some folks, when I bring this up, claim I’m just mad because my side lost. Well, I don’t deny that I don’t like the outcome of the ruling, but even beyond that, and looming larger, is the power grab I see in DC. Unfortunately, all I get in dissent is, “Blah blah blah. Too bad. You lost. I don’t care.” Yes, literally, those words.

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      Scattered Thoughts on Law and Ethics

      Take two sets of actions and deeds, in the first set we have “things which are moral” in the second “things which are legal”. There may be overlap. Observing the fights about various things in our (mostly urban/rural cultural divide for which party serves as proxy) like marriage, divorce, abortion and so on .. many if not most people confuse the two and figure what overlap there is (most killing for example) is intentional and what is moral and what is legal in a “good” society would be a very close if not exact match. This. Is. Wrong. Very wrong. It is an unconstitutional and un-American idea.

      Here’s the thing. The purpose of the law is to structure our society to promote life, liberty and the pursuit of happiness (and happiness != pleasure but the meaning Aristotle and the like intended).  This structuring of law as constructed in our country leaves morality out of the metaphysical framework underpinning it. “Life, liberty and the pursuit …” is not the 10 commandments. It isn’t a call to act rightly. It isn’t a prescription of how to act or think. Our law is not encoded so that we will be righteous by what ever meta-ethic you or I live by. But free, alive, and able to pursue excellence.

      This isn’t precisely true however. You notice our founders made particular exceptions for freedom of religion and the law subsequently has made a point to encourage religious practice. Many, especially of the academic left and press think religion and it’s place in our society is a relic and it’s time has passed. It might be worth noting a really good start in this discussion which shouldn’t be ignored is first to read through this discussion. Then argue from there.

      This realization that law and morals (personal ethics) are independent has consequences. For example,

      1. For most, what is moral should take precedence. If you must do something because it is right, you must do it even if it is illegal.
      2. Take abortion as an example. If you think abortion is immoral, don’t do it and don’t advise those around you to do it. If you want to argue that it should be illegal those arguments shouldn’t center on how it is immoral but how it doesn’t exactly give a chance at, erm, life, liberty and pursuits to those who are among the weakest and smallest in our midst (there’s a Rawlsian argument to be made there). You could point out that excluding people from personhood based on particulars of their existence and not the ontology of their being has a very poor history of human rights vis a vis the 20th century. There may be good arguments on the other side of this question, but they are not known to me so I won’t attempt that. Similar “life &c” argument can be made with respect to most, if not all, of those things over with the rural/urban cultural divide quarrels.
      3. Moral instruction for children, an essential responsibility of parents, is quintessential. This is the most important thing a parent can impart to their child. Why? Because the civil environment (law) does not do that. But you can’t be happy (see link above) without ethics. After all ethics can be succinctly coined as a study in what is good (and doing that). Without know what excellence is, how can you be happy?
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        Indiana’s Religious Freedom Restoration Act

        The state of Indiana has come under fire for passing their version of the federal Religious Freedom Restoration Act. RFRA, as it’s called, was passed in response to court cases that eroded First Amendment protections of the exercise of religion. Religious freedom used to be judged on a case-by-case basis, considering whether each law had specific exemptions for religious groups. Charles Schumer, Democratic Senator from New York, introduced a bill in 1993 to set a standard on how religious freedom cases should be considered; using the same standard that another First Amendment protection – freedom of speech – was adjudicated. I’ll get to the details of that standard in a moment. The bill passed the US Senate 97-3, and by acclamation in the House. Bill Clinton signed it on November 16, 1993. Today, that same action at the state level is being called “bigoted” by Democrats.

        States have been doing this ever since a Supreme Court decision said that the federal RFRA didn’t apply to the states. Most of the states that have one use language identical to the one Clinton signed. But while religious freedom used to be supported by Democrats, the rise of a particular protected class (and reliable Democratic voting bloc) changed all that; homosexuals. Once again, as we have seen so many times, politics trumps everything else for the Left, even, apparently, the Bill of Rights.

        The fear being stoked is that this will allow Christian businesses to turn away gays just for being gay. Here are a couple of articles that are lists of frequently asked questions about the Indiana RFRA, and they explain, no, that sort of discrimination is not protected. If a Christian denies service to someone simply because they are gay, on the grounds that it’s a sin according to Christian doctrine, you would have a tough time proving those religious grounds in court. According to Christianity, we are all sinners. None of us are perfect. So that business owner would have to deny service to everyone, including him- or herself.

        Participation, one way or another, in a same-sex marriage ceremony has been the typical cause of contention. And all of the examples that I’ve seen that have been taken to court are regarding business owners that would bake cakes, take pictures, or arrange flowers for a gay customer for any purpose other than a same-sex wedding ceremony. This is most definitely not discrimination against gays because they’re gay. It is, however, a religious objection to a ceremony that the business owner does not wish to participate in.

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          (Yes, it’s been a while since I blogged here. I’ve been busy with my podcast “Consider This”. However, I just had to come out of blogging semi-retirement to comment on this.)

          Being argued today at the high court is King v Burwell, a lawsuit against ObamaCare (also known in some circles as the Affordable Care Act). This is a set of questions and answers that I imagine many people have about this.

          Q: What is this case all about?

          A: The crux of the issue is a 4-word phrase inside the massive law; “established by the States”. The subsidies supplied by the IRS, according to the text of the law, were to only go to those who applied for insurance via exchanges “established by the States”. If they used the federal exchange (HealthCare.gov), that is not “established by the States” so the subsidies wouldn’t apply.

          That’s according to the plain language of the law, and according to Jonathan Gruber, a major influence in the creation of the law.

          What happened was that the IRS gave out subsidies to those without state exchanges anyway. The lawsuit is saying that the government broke the law in doing so.

          Q: What case is the government making?

          A: That the rest of the law, taken as a whole, makes it clear that withholding subsidies from those who didn’t get their insurance via exchanges “established by the States” was not the intent.

          Q: Does it actually say in the law somewhere, specifically, that those people should get subsidies?

          A: Not that I’ve read. In fact, those articles I’ve seen that have written in defense of the subsidies (like this article by Robert Schlesinger in USA Today) don’t cite any other text that would buttress that opinion. Rather, they argue about the results if the subsidies were overturned.

          To me, that sounds like they’re arguing that a law should say what the implementers want it to say, regardless of what the law itself says. That’s a precedent I don’t think we want to create. For example, if a Republican President vetoes legislation, and a Democratic Congress overrides that veto, is the President free to implement the provisions of the law he or she likes and ignore others? I’d say No, and I think those arguing for the ObamaCare interpretation would agree with me if the parties today were reversed.

          The IRS did issue a ruling saying that they would, in fact, give subsidies to those in states without exchanges, but as far as I’m aware, the IRS is not part of the legislative branch.

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            Unique Lawsuit Against ObamaCare

            George Will, writing in the Washington Post, highlights a very novel lawsuit working its way through the courts. Essentially, the thought process of the suit goes like this:

            1. The Constitution says explicitly that, “All bills for raising reveornue [that’s the 1700s spelling of “revenue”] shall originate in the House of Representatives”.
            2. The ObamaCare bill originated in the Senate. No problem there, but…
            3. The Supreme Court, in what Will calls a “creative” reading of the law, called the bill a “tax” on certain activity (or, in the case of ObamaCare, inactivity).
            4. As a tax, it is therefore a revenue bill, but it did not originate in the House, and is therefore unconstitutional.

            Ya’ gotta’ wonder if Chief Justice John Roberts played rope-a-dope with the liberals on the bench in creating this particular interpretation, and was hoping someone out there would notice.

            There are some other issues with how the bill was created, and reading this short piece, from a link in the show notes, is incredibly enlightening. Keep an eye on Matt Sissel and the Pacific Legal Foundation’s lawsuit. We may be hearing about it more prominently in the months to come.

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              Good news on the religious liberty front. Gabriel Malor writing at Ace of Spades give a great rundown of the main points of the district court judge’s ruling with regards to forcing the Catholic Archdiocese of New York to cover, or exempt themselves, from the ObamaCare™ requirement that they cover contraception or abortion. In a snark-less post, it’s just a matter-of-fact examination of the ruling, and why this may have a very tough road to the Supreme Court, assuming it’s appealed that far.

              Some highlights (but, as they say, read the whole thing):

              This is the first litigation to result in a final injunction against the contraception mandate for religious non-profit organizations that come within the Obama Administration’s purported exemption to the mandate.The 7th, 10th, and D.C. Circuit Courts of Appeals have all found the mandate to be an unacceptable burden on the free exercise of religion for for-profit businesses that don’t come under the exemption. This case is important, though, because it recognizes that even the act of having to claim the exemption is an unacceptable burden on religion.

              Very late in this case, the government realized that, although the Archdiocese and its constituent organizations are covered by the mandate, the regulations might not actually force a third party they designate to provide the objectionable contraception coverage. The judge was not amused:

              The Obama administration has handed out so many exceptions to the law, it can no longer claim the law serves a compelling purpose.

              The administration, as it has frequently done with respect to disobeying laws it does not like, argued that it had to enforce the contraception mandate in such an infringing manner because it could not do it any other way. The district court pointed out the obvious flaw in this line of thinking:

              A very interesting and damaging ruling.

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                Same-sex marriage got a gentle nudge from the Supreme Court in the recent ruling on the Defense of Marriage Act. But, as much as it seems that it’ll be a state-by-state issue, a court ruling in late July suggests that same-sex marriage anywhere may mean same-sex marriage everywhere. A federal judge in Ohio ordered state officials to recognize the marriage of two men who were married in Maryland, for the purposes of listing on the death certificate of one that he was married to the other.

                Yeah, it’s just a blank on a form being filled in, but if it stands, it would be a legal precedent that could easily be built upon. So here’s the question for same-sex marriage proponents. Do you really believe this should be decided by each state, or should it be handed down from the federal government? If the former, you should be against this judge’s action. If the latter, you should be letting us all know. My guess is that if people knew that proponents are looking to force this on all states, there would be quite the backlash. And so, in the meantime, it’s not spoken of much in polite company. After all, if you think the federal government shouldn’t define marriage via DOMA, then it shouldn’t define marriage, period.

                And the people of Ohio would get to choose how to deal with this situation themselves.

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                  Attorney Generals Are Not Judges

                  [This is part of the script from the latest episode of my podcast, "Consider This!"]

                  The Supreme Court said that the people of California have no standing to defend a constitutional amendment that they passed if the state won’t defend it. It’s now open season on laws that state administrations don’t like. Exhibit A.

                  Pennsylvania attorney general Kathleen Kane announced Thursday afternoon she will not defend the state in a federal lawsuit filed this week challenging the constitutionality of the state’s ban on same-sex marriage, calling the prohibition “wholly unconstitutional.”

                  Who promoted her to judge? Whether or not it’s unconstitutional is not her call to make. The Attorney General represents the state and defends its laws; all of the state and all of its laws.

                  If a state Attorney General refuses to defend those laws, that’s an abdication of his or her primary responsibility; their oath of office. AGs do not (or at least should not) have this prerogative. Otherwise you’ll have one set of laws when one administration is in power, and another set for another administration.

                  The Supreme Court said that they’re leaving it up to the states to decide what marriage is. But are we leaving it up to the state governments or to the state’s people?

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                    The Supreme Court "Proposition 8" Ruling

                    The Prop 8 ruling was perhaps more troubling than even DOMA. The Supremes decided, cutting across ideological lines interestingly, that the people of California had no standing to bring their own challenge against the ruling of a judge that Prop 8, which created a state constitutional amendment defining marriage, was unconstitutional. Here’s a graphic I found that describes the problem the best.

                    While I’m against true direct democracy (the ol’ “two lions and a sheep voting on dinner” analogy), the proposition feature of California law has a high enough bar to clear to get something on the ballot to safeguard that. But now the people’s will can be simply ignored, with the ruling of a single judge, and we, the people, have no standing to challenge it at the Supreme Court. Wow.

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                      The Supreme Court DOMA Ruling

                      In the recent spate of rulings from the Supremes were two that dealt with same-sex marriage; the Defense of Marriage Act (or DOMA), and California’s Proposition 8. I’ll look at Prop 8 tomorrow.

                      The portion of the DOMA law that was ruled against is a provision that denies benefits to legally-married gay couples. Gay couples, under federal law, will now be considered “married.” The DOMA vote was 5-4, with Justice Kennedy writing for himself and the liberals on the court. He wrote that DOMA is a violation of, “basic due process and equal protection principles applicable to the federal government.” Very interestingly, he also pointed out that DOMA infringed on states’ rights to define marriage.

                      Having just written about the Voting Rights Act yesterday, let me just say that that last observation is almost humorous coming from the liberal justices. The same people who said that 50-year-old data is sacrosanct in one ruling, said, in another ruling released the same day, that the definition of marriage, which has been defined for millennia, is just a states’ rights issue. The duplicity and blind partisanship is simply breathtaking.

                      In one respect, I agree with the DOMA ruling, regarding the idea that the federal government doesn’t need to be in the business of defining marriage. Now, I don’t thinks states should do that either, but it sets a precedent, that marriage is decided at the ballot box. It isn’t. And besides, regarding federal involvement, it’s the states that give out marriage licenses, not DC. So from that angle, it does make sense. Sort of.

                      The problem is, some states have decided to insert government into marriage like it has never been before. Glenn Reynolds, one of the most popular bloggers out there, the Instapundit, has been voicing his support for the repeal of DOMA by saying that government should get completely out of marriage. But as I have said before, when the government defines marriage, it is completely in the issue. Politics and PR will now define marriage. It didn’t need formal definition before, because it was almost universally agreed that it was one man and one woman. Cultures and religions, outside of government, defined marriage. All the state did was sanction what had already been decided. Back in episode 38, I discussed this in detail, so there’s a link in the show notes if you want to catch up on that. But basically, now that states decide what marriage is, the logical end of this is that marriage will mean what anyone wants it to mean, which means it will be meaningless. Since states were redefining an already well-defined term, it fell to the federal government to bring a little order and common sense to this chaos. I didn’t like it, but didn’t see any other good way out of it.

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                        A portion of the Voting Rights Act of 1965 was struck down by the Supreme Court. The Act itself wasn’t chucked, just the way that it was determining which states came under it. The era of poll taxes and literacy tests are gone, and the disparity between whites and blacks regarding voter participation have been erased. The state with the largest gap between white and black voter turnout these days is Massachusetts, for cryin’ out loud. And in Mississippi in the 21st century, black turnout exceeds white turnout. But the VRA was still punishing the South for race disparities in voting that have long been remedied.

                        So then, is 50-year-old data better than current information when trying to determine who should come under the Voting Rights Act? Have we learned nothing from the mistakes of the past? The four liberal Supreme Court justices, Attorney General Eric Holder, and President Obama would answer No to both those questions, at least based on the outrage they feigned over the ruling. They can’t seem to bring themselves to believe that progress has actually occurred. Or they’re pandering to their base. Either way, to call requiring these stats to be updated “turning back the clock” is cognitive dissonance of the highest order. The request is that the clock be turned forward, and Democrats are against it. Or they are pretending to be against it, and hoping that their base isn’t paying attention.

                        If you are a Democrat, and you’ve wondered why Republicans are often wary of laws that try to remedy sins of the past, this is exhibit A. Here is a law trying to do such a thing, but it’s stuck in the culture and racism of the 1960s, and any attempt to acknowledge repentance from those sins is taken, by liberals, to be just as bad. And if you want to take politically corrective legislation like the Voting Rights Act and update it for today’s reality, you must be racist.

                        Ronald Reagan quipped that government programs are the nearest thing to eternal life we’ll ever see on this earth. But the Supreme Court didn’t do away with the VRA, it just said that it should be relevant. Those politicos that spoke out against this eminently reasonable decision are, in my mind, just as irrelevant as 50-year-old statistics.

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                          Marriage "Equality"

                          Episode 36 of my podcast, "Consider This!", came out this morning. Here’s the (slightly edited) script for one of the segments regarding the call for "marriage equality".


                          When the Supreme Court took up two cases regarding same-sex marriage recently, Facebook lit up with red equal signs of people proclaiming their support for what they call “marriage equality”. And that’s how I’ve heard the debate framed by supporters for years, as an issue of equality. One group gets to do something that another group doesn’t. Where’s the sense of fairness, of everyone being equal under the law?

                          Well, to understand the underlying problem here, let’s take two other areas where one could demand equality. Let’s look at voting and driving. Are you for voting equality and driving equality? Should some voting or driving laws be different for different people, or not even available at all to some?

                          Let’s take a group of people I’ll call blind people. Now, should they have both voting and driving equality? I’m going to hazard a guess that you said yes to voting but no to driving. I don’t need to be a mind-reader to get that one right. But, but, equality! What about equality? Shouldn’t we really be taking to the streets and demanding the Supreme Court rule on driving equality for the blind?

                          No, of course we shouldn’t. But why equality for one thing and not another? Steven Smith, a Professor of Law at the University of San Diego, wrote an article using this example of why we treat the two situations differently.

                          That is because an ability to see is not a relevant qualification for voting, but it is a relevant qualification for driving. We know this, though, not by applying the idea of “equality,” but rather by thinking about the nature of voting and of driving. Probably there is no disagreement about these particular conclusions. But if you did happen to encounter a good-faith disagreement, you would not be saying anything helpful if you thumped the table and declared that “blind people should be treated equally.” You would only be begging the question.

                          You can’t drive if you’re blind, or under a certain age, or haven’t taken a driving test. Heck, you can’t vote if you’re a felon, or under a certain age, or mentally incompetent. So even with voting, there are inequalities. And therefore, just demanding marriage equality, without considering the nature of marriage, is useless.

                          And so what, then, is that nature of marriage? That’s the next logical question, and something I will be taking up in a subsequent episode. Until then, I have another link in the show notes to a rather lengthy paper by the Heritage Foundation on what marriage is, why it matters, and the consequences of redefining it. I’ll be pulling points from it for when I tackle this subject later on. You may want to take a look at it and perhaps write or call with your thoughts to be included in the episode.

                          But this foundation of the issue of equality needs to be laid first. Suffice to say, for now, that just spouting “Equality” with your fashionable, red equal sign doesn’t really mean much. It’s not an argument. It’s not a reason. It’s just a slogan.


                          If you want to let me know what you think, call 267-CALL-CT-0 (267-225-5280) for the feedback line, or e-mail considerthis@ctpodcasting.com.

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                            Categorical Errors Considered

                            Note: I started writing this with the notion that the category error alluded to below was a mistake and a sidelight hiding behind the issues being argued. As I continued in writing I have come to believe that the category error is both the primary reason for the arguments and further is a fundamental problem which is well known.

                            Much wroth, fury, words, and accusations of ignorance, bigotry, and perversion have crossed from both sides in the recent decades long struggle by various factions in the debates about marriage and who might be married rightly. A few observations

                            1. Defenders of SSM remark that this sort of marriage is private and affects none outside of the marriage. Yet, if this were so, then why would not civil unions suffice? The logical answers is because this reply is a lie. It does in fact affect others and in this lies a category error to which I alluded in this essay’s title.
                            2. To read the papers and hear the debates this is an important issue. Yet, why is that? Why is that more important than other issues. As that famous statistician Bjorn Lomberg  pointed out that getting vitamin supplements to the third world would saves tens if not hundreds of millions of lives (and would be cheaper and more effective than most of the aid we send to the third world), world-wide millions are affected by human trafficking indeed the numbers trafficked within the states is comparable to those affected by SSM … and those affected are mostly well educated affluent couples. Yet what debates are heard?

                            How are these issues a sidelight issue and the other a hot button issue? I suspect my  I offer it is because those entrenched against SSM are also committing that same category error. What is the error of category to which I allude? Simply the following, laws and lawmakers are not our spiritual guides. Note, the use of the term “spiritual” is not the normal one, but one which I will continue in this essay and perhaps in further essays.

                            So let me digress for a moment. Spiritual? What is that? In the introduction to Dimitru Staniloae’s book (Orthodox Spirituality), it is pointed out that in the Eastern Christian doctrine, your spiritual life and its tending is perhaps better translated as your ethical life and its care. Spiritual health and ethical well being are synonyms.

                            What is legal or not and what is righteous (in good spirit or a good moral/ethical decision) are independent. This is a founding principle of American jurisprudence. (Or is it?) It certainly is the assumption now. Mr Daschle defended a Senatorial philandering colleague by pointing while he while he was dishonest he didn’t break any laws. The correct reaction to this is that the colleague got his priorities exactly backwards, i.e., it is more important to be ethical than stay on the right side of the law.

                            Laws are not ethics. Laws and what lawmakers conspire to create has very little to do with ethics and instead its primary purpose is to provide a framework. This framework provides so that peoples may live harmoniously alongside each other in an ordered way.  So that, when conflicts between people arise, there is an orderly way of handling those same conflicts. Personal ethics overrides and sits over the law. For the most part, there is no conflict, most of our choices, our ethical decisions do not lead us toward choices which are illegal. Where they do, it is right, it is correct to choose the ethical over the legal. On the other hand, there are things you may do legally which however are not ethical. Even where there is no conflict, normally ethics binds our actions tighter than the law.

                            Solzhenitsyn warns that this separation that is part of modern Western democracies (and was part of the former Soviet state) is an error. That itself is an interesting counter point. So it seems likely that this why this debate is important is not what it is about, but sort of the issue is the ground on which it is being made. What is at stake is perhaps not about the particulars of whether certain young dinks (dual income no kids) can have their relationship legalized or not but really what is being debated here and in other forums is whether law should be neutral or be admitted to have spiritual (ethical) content or should it not. Kant (and our founders) explored law devoid of ethics, can a safe lawful republic of demons (not angels) be constructed or not. Perhaps it can. Perhaps it can’t. The question at hand is should it? Recall the Ratzinger/Habermas debate, debating whether a democratic society can be constructed and sustain itself independent of religion, i.e., “does it need things outside itself to sustain itself.” Ratzinger and Solzhenitsyn think not. Bertrand de Jouvenal pointed out in his meta-political science musings about what he termed Babylon (the large multicultural state) envies the unity of the small state. My reading of Solzhenitsyn (and Jouvenal) is that a solution exists. If the larger federal state limit itself to promoting commerce and unity between smaller entities within itself, while foster their ability to form strong local identity, laws and praxis then you could have the best of both worlds. You can find local loyalties and ties and bonds within the framework a larger multicultural state.

                            Both sides of the cultural debate miss this point. Both sides wish to apply the same laws and sensibilities in artists boroughs of San Francisco, in Amish villages in Ohio, in rural Lutheran Wisconsin, and so on. Why? Why try? It seems wrong to insist that behavioral norms universal.

                            Locally laws can be tied to spirit. Federally, the are not, but there they run to the Habermas separation of Spirit and law. It seems to me laws about birth, death, marriage are those which the federal level should keep its hands away, to set aside for local regions to coin their own practices, to tie their own view of ethics and spirit what is allowed, to what is righteous in their region.

                            Instead of insisting that laws be spiritual or devoid of spiritual considerations is wrong. Federal laws laws which bind us all, might be best be light and aim only to promote commerce, unity, and ease frictions. Local laws … let them tangle and wind the ways the local choose. That is, after all, nothing more than freedom.

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                              The "Consider This!" Podcast, Episode 28

                              Maybe this is why I’ve not been blogging much. Well, it’s certainly a contributing factor.

                              The latest episode covers the fight of North Carolina pro-choicers against a license plate that advocates a choice, and a rundown of how well the Washington, DC gun ban reduced homicides (hint: it didn’t).

                              Click here for the show notes, links to articles mentioned, and ways to get your voice heard on the podcast. You can also listen to the show right on the page, or subscribe in iTunes, Stitcher or the Blubrry network.

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