Some judges get one right

SAN FRANCISCO (AP) - The California Supreme Court upheld a voter-approved ban on same-sex marriage Tuesday, but it also decided that the estimated 18,000 gay couples who tied the knot before the law took effect will stay wed.

Demonstrators outside the court yelled "shame on you!"

The 6-1 decision written by Chief Justice Ron George rejected an argument by gay rights activists that the ban revised the California Constitution's equal protection clause to such a dramatic degree that it first needed the Legislature's approval.

The court said the Californians have a right, through the ballot box, to change their constitution.

"In a sense, petitioners' and the attorney general's complaint is that it is just too easy to amend the California Constitution through the initiative process. But it is not a proper function of this court to curtail that process; we are constitutionally bound to uphold it," the ruling said.

The justices said the 136-page majority ruling does not speak to whether they agree with Proposition 8 or "believe it should be a part of the California Constitution."

They said they were "limited to interpreting and applying the principles and rules embodied in the California Constitution, setting aside our own personal beliefs and values."

I'm floored.

The California Supreme Court set aside their own personal beliefs and values and applied the state constitution as written!

This must be another sign of the Apocalypse.

Redefining our way toward Gomorrah

Maggie Gallagher, writing in NRO, explains the real implications behind the trend of judicially imposed gay marriage:

When I first raised the question of what same-sex marriage will mean for traditional faith groups in The Weekly Standard cover story “Banned in Boston: The New Threats to Religious Liberties” in 2006, many people were shocked and astonished. Surely this was just hysteria?

For no dogma has been more thoroughly promoted by same-sex marriage advocates than the idea that gay marriage is harmless; there’s no real reason to oppose it, even if you don’t exactly agree, because it will only affect Adam and Steve — so why should you care?

That was a good line for a few years, but with the California court victory, it is being replaced in gay newspapers with more open acknowledgements of what Adam and Steve’s right to gay marriage will really mean for the rest of us.

For example, a May 30 Washington Blade story asked, “what about religious adoption agencies or daycare centers? Will they be forced to accommodate gays?”

“Experts say organizations that receive state and federal funding will not be allowed to oppose working with gays for religious reasons,” the Blade forthrightly reports, “Some, most notably Catholic Charities of Boston (gay marriage is legal in Massachusetts), have opted to get out of the adoption business rather than be forced to allow gays to adopt.”

What about the next step: “Could churches in time risk their tax-exempt status by refusing to marry gays?”

Here’s the official answer from a leading gay paper, “That remains to be seen and will likely result in a steady stream of court battles.” Are those the same courts that decided same-sex marriage is a constitutional right?

This week National Public Radio similarly highlighted the coming religious-liberty conflicts, opening with a remarkably frank and open admission of how serious the implications are: “As gay couples in California head to the courthouse starting Monday to get legally married, there are signs of a coming storm” — as NPR put it in their written version — “Two titanic legal principles are crashing on the steps of the church, synagogue and mosque: equal treatment for same-sex couples on the one hand, and the freedom to exercise religious beliefs on the other.”

“The collision that will play out over the next few years will be filled with pathos on both sides,” NPR says. But the story also acknowledges: “So far, the religious groups are losing.”

Here’s the conclusion I’ve come to after four-plus years of active participation in the same-sex-marriage debate: Gay marriage is not primarily about marriage. It’s also not about Adam and Steve and their personal practical legal needs. It is about inserting into the law the principle that “gay is the new black” — that sexual orientation should be treated exactly the same way we treat race in law and culture.

Gay-marriage advocates say it all the time: People who think marriage is the union of husband and wife are like bigots who opposed interracial marriage. Believe them. They say it because they mean it.

The architects of this strategy have targeted marriage because it stands in the way of the America they want to create: They hope to use the law to reshape the culture in exactly the same way that the law was used to reshape the culture of the old racist south.

Gay-marriage advocates are willing to use a variety of arguments to allay fears and reduce opposition to getting this new “equality” principle inserted in the law; these voices may even believe what they are saying. But once the principle is in the law, the next step will be to use the law to stigmatize, marginalize, and repress those who disagree with the government’s new views on marriage and sexual orientation.

Many of the harshest legal conflicts could be alleviated with religious-exemption legislation. But gay-marriage advocates will fight those religious exemptions tooth and nail (as they did in Massachusetts when the Catholic Church asked for one for Catholic Charities) because, they will say, it’s the principle of the thing: We wouldn’t give a religious-liberty exemption to a racist, so why should someone who opposes gay marriage get one?

Conservative gay-marriage advocates like Andrew Sullivan may well tut tut that they don’t really agree with, say, kicking Catholic Charities out of the adoption business. If it were left it up to guys like them, they probably would not do it. But it won’t be left up to them (and they can hardly be expected to fall on their swords to prevent it either.)

Ideas have consequences. This is what “marriage equality” means.

This November, voters in California will have a chance in the privacy of the voting booth to either affirm or repudiate California’s supreme court decision.

What is at stake in the California marriage debate now taking place? The meaning of marriage, the idea of judicial restraint, and the official harassment and repression (by our own government) of traditional religious faiths.

Failure in California not an option. Conservatives and other people of good will need to recognize the battle we are in. We didn’t choose it, but for better or worse it is here.

I am not aware of any instance in history in which a society has progressed as far down the slippery slope of social degeneration as America has and then been able to turn itself around and restore its culture.

I'm not saying that it hasn't happened, but if it has I'm not aware of it.

To amend or not to amend

In the debate over gay marriage a commonly expressed opinion is that a constitutional amendment to define marriage as being between a man and a woman is a poor idea. The usual reasons given are first that the Constitution is the source, or recognizer, of our liberty. The Constitution tells the government what it can and cannot do, not the people - so the reasoning goes.

I hate to disappoint all those people but the Constitution contains within its body the definition of the crime of treason. Article III, Section 3 reads as follows:

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life f the Person attainted.

So there's one thing that the Constitution tells us we can't do (I wish San Fran Nan and the congressional Democrats would read this).

The other principal reason for opposing a "gay marriage" amendment is based in the idea of federalism. Each state is supposed to set its own laws within a broadly defined matrix. This makes each state a "laboratory of freedom" in which new ideas can be tried out and the results compared with other states. This is supposed to give the people the needed information about what works and what doesn't.

Now this is a fine idea, usually. However there is one reason that the federalist approach will not work in this case. Article IV, Section One of the Constitution reads this way:

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

A marriage is a legal contract between the two parties. A marriage performed in one state is held to be legal in any other state. Even if a couple is too young to be married in one state if they go to another state where the law allows them to wed then the first state must honor their marriage. The same holds true for divorce. Some states like North Carolina require a couple to live apart for 1 year before a divorce in finalized. Others like Tennessee will grant a divorce in 30 days and some will dissolve a marriage on the spot. North Carolina must recognize divorces obtained in other states by its citizens even when they do not conform to North Carolina's divorce laws.

The same exact thing should hold true for marriages between homosexuals. I know that a great many states are passing laws or amendments to their state constitutions banning gay marriage. I know that the federal legislature has passed the Defense of Marriage Act. However the Act has not been tested before the Supreme Court and is certainly unconstitutional.

Sorry but I apply the same unbending absolutism to every other part of the Constitution that I do to the Second Amendment. I do not care that I would not like the outcome of a strict constructionist or originalist verdict on a challenge to DOMA I would hope and expect the court to uphold the constitution as written.

To sum up there are only four ways to prevent one state from legalizing homosexual marriages which would need to be honored in every other state.

1. Pass an amendment to the United States Constitution defining marriage as between a man and a woman.

2. Pass an amendment to the United States Constitution creating an exception to Article IV, Section 1 (the full faith and credit clause) for homosexual marriages so that states do not have to recognize gay marriages performed in other states.

3. Get every single state to amend its state constitution to define marriage as between a man and a woman and somehow magically guarantee that they will never change their mind and resend the amendment.

4. Pray that when the DOMA comes before the Supreme Court that there are a majority of conservative justices who are detestable enough to engage in the same kind of loathsome judicial activism which marks the corrupt character of liberal justices. And while you are at it pray that that activism will confine itself to upholding DOMA and not manifest itself in ways that you will find hateful.

To summarize, in order to prevent gay marriages from becoming legal in the entire nation we must either get the states to unanimously agree to ban them and ensure that no state changes its mind. Or we must amend the federal constitution on one of two ways. Or we must sell our souls and support judicial activism.

Since the 50 states will never agree permanently about gay marriage and I will enter a gay marriage myself before I support judicial activism I vote for a constitutional amendment. If you want all gay marriage banned everywhere go with option one. If you are willing to see it in some places as long as everybody doesn't have to put up with it then go with option two.

Full text of the Constitution here.

Rudy tries to position himself with the right

Back in June of last year Richard Baehr made this suggestion for how Rudy could possibly overcome the objections of social conservatives to Giuliani's rampant left-liberalism on social issues:

My own view is that there is a third strategy for Giuliani to become an acceptable candidate to religious conservatives. That would be to state publicly that he believed that President Bush had made two very good appointments to the Supreme Court in John Robert and Sam Alito. He could also say that if elected, he would seek to find similar justices for the High Court when any vacancies occurred: men or women of great professional competence and integrity, committed to a serious examination of the language and meaning of the Constitution, and not to making new law on the Court.

The reality is that 'progressive' social legislation generally does not pass the Congress to become law. Law changes to implement the 'progressive' social agenda have been more often judicially mandated. If Giuliani promises to appoint Supreme Court and lower court justices who will be perceived as strict constructionists (even if he does not use those exact words), then he will do no worse in this area than a candidate who has professed a pro—life policy for his or her entire political career.

It would seem that Giuliani has taken that advice as can be seen in his interview with Sean Hannity:

HANNITY: Where does Rudy Giuliani stand on abortion? And do you think Roe v. Wade is a good law, a bad law?

GIULIANI: Where I stand on abortion is, I oppose it. I don't like it. I hate it. I think abortion is something that, as a personal matter, I would advise somebody against.

However, I believe in a woman's right to choose. I think you have to ultimately not put a woman in jail for that, and I think ultimately you have to leave that to a disagreement of conscience and you have to respect the choice that somebody makes.

So what I do say to conservatives, because then, you know, you want to look at, well, OK, what can we look to that is similar to the way we think? I think the appointment of judges that I would make would be very similar to, if not exactly the same as, the last two judges that were appointed.

Chief Justice Roberts is somebody I work with, somebody I admire, Justice Alito someone I knew when he was U.S. attorney, also admire. If I had been president over the last four years, I can't think of any, you know, that I'd do anything different with that.

And I guess the key to it is -- and I appointed over 100 judges when I was the mayor -- so it's something I take very, very seriously -- I would appoint judges that interpreted the Constitution rather than invented it, understood the difference between being a judge and being a legislator. And having argued a case before the Supreme Court, having argued in many, many courts is something I would take very, very seriously.

HANNITY: So you would look for a Scalia, a Roberts, an Alito?

GIULIANI: Scalia is another former colleague of mine and somebody I consider to be a really great judge. I mean, that would be -- you're never going to get somebody exactly the same. You're never -- and I don't think you have a litmus test. But I do think you have sort of a general philosophical approach that you want from a justice, and I think a strict constructionist would be probably the way I'd describe it.

Hannity asks Giuliani if he thinks that Roe v Wade is bad law. Rudy wiggles around the question, but has this to say about partial-birth abortion:

GIULIANI: Partial-birth abortion, I think that's going to be upheld. I think that ban is going to be upheld. I think it should be. And I think, as long as there's provision for the life of the mother, then that's something that should be done.

This is a good sign. The abortion lobby insists that any restriction on any kind of abortion absolutely must include an exemption for abortions which are necessary to protect the health of the mother. Rudy used the phrase "life of the mother". Although it may seem like a minor point there is really a massive gap between the positions. The abortion industry defines "health" to include mental health and defines mental health so broadly that a woman's health is considered to be in danger if she states that she would "feel bad about herself" if she didn't get an abortion.

I find it impossible to believe that Rudy's advisers are unaware of this fact and I believe that this language is carefully crafted to send the message that he will not oppose, and possibly even actively support, the kind of limitations on abortion which conservatives are seeking to enact as a way to at least minimize the carnage caused by Roe.

As long as Roe v Wade stands the outright prohibition of abortion on demand is not possible. The appointment of Supreme Court justices who will recognize it as bad law and have the courage to overturn it is the only true fix for the problem. Rudy has signaled that he is willing to be part of the solution, that is if you believe him.

On the issue of gun control Rudy is also showing himself to be flexible:

HANNITY: Let me move on. And the issue of guns has come up a lot. When people talk about Mayor Giuliani, New York City had some of the toughest gun laws in the entire country. Do you support the right of people to carry handguns?

GIULIANI: I understand the Second Amendment. I support it. People have the right to bear arms. When I was mayor of New York, I took over at a very, very difficult time. We were averaging about 2,000 murders a year, 10,000...

Now at this point we should point out that saying that you "support the Second Amendment" is the next thing to meaningless. Sarah Brady says that she "supports the Second Amendment" and to prove it points to the fact that she has no problem with people joining the National Guard or owning their hunting rifles, as long as they are kept unloaded and locked up.

Of course the Second Amendment has nothing to do with National Guard service or with deer hunting or target shooting.

HANNITY: You inherited those laws, the gun laws in New York?

GIULIANI: Yes, and I used them. I used them to help bring down homicide. We reduced homicide, I think, by 65-70 percent. And some of it was by taking guns out of the streets of New York City.

So if you're talking about a city like New York, a densely populated area like New York, I think it's appropriate. You might have different laws other places, and maybe a lot of this gets resolved based on different states, different communities making decisions. After all, we do have a federal system of government in which you have the ability to accomplish that.

HANNITY: So you would support the state's rights to choose on specific gun laws?

GIULIANI: Yes, I mean, a place like New York that is densely populated, or maybe a place that is experiencing a serious crime problem, like a few cities are now, kind of coming back, thank goodness not New York, but some other cities, maybe you have one solution there and in another place, more rural, more suburban, other issues, you have a different set of rules.

HANNITY: But generally speaking, do you think it's acceptable if citizens have the right to carry a handgun?

GIULIANI: It's not only -- I mean, it's part of the Constitution. People have the right to bear arms. Then the restrictions of it have to be reasonable and sensible. You can't just remove that right. You've got to regulate, consistent with the Second Amendment.

HANNITY: How do you feel about the Brady bill and assault ban?

GIULIANI: I was in favor of that as part of the crime bill. I was in favor of it because I thought that it was necessary both to get the crime bill passed and also necessary with the 2,000 murders or so that we were looking at, 1,800, 1,900, to 2,000 murders, that I could use that in a tactical way to reduce crime. And I did.

This is not great, but it does bring him over the edge of acceptability, if only by microns. I don't care what Giuliani believes in his heart of hearts as long as he does the right thing. I'll take a hypocrite who does what I want him to do over an iron willed man of integrity who does what I do not want him to do any day of the week.

On gay marriage Rudy says he supports domestic partnership laws, but is against gay marriage. This is acceptable to me in that it preserves the distinction between what is a legal contract on one hand and a holy covenant before God on the other. Bottom line is that if you have a man whose wife has to be described as his "current wife" or "the woman he's married to this year" or some such then you know that he just doesn't get the "marriage thing" and probably never will.

Finally on the issue of border security and amnesty Rudy fails the test utterly. When you get past the weasel words he opposes a fence and supports amnesty. This puts him in the same boat as George W Bush and John McCain and Hillary Clinton and Barak Hussein Obama. So on this issue, which is very likely the single most important issue of the century he is no different in his cluelessness than the other frontrunners and the current administration.

Final thoughts. If Rudy's position on gun control stays what it is here, especially if he goes out of his way to praise "shall issue" concealed carry permit laws for the way that they empower individuals to protect themselves against predatory criminals, I will no longer consider voting for a third party instead of for him.

But I will still probably hold my nose.

Gay marriage, not even in MA

From The New York Times:

BOSTON, Jan. 2 — Massachusetts, the only state where same-sex marriage is legal, took a first step toward possibly banning it Tuesday when legislators voted to advance a constitutional amendment defining marriage as the union between a man and a woman.

The amendment now requires the approval of at least 50 legislators in another vote in the 2007-8 session. Then it would be placed on the November 2008 ballot as a referendum question.

If it passed, the amendment would not invalidate the more than 8,000 same-sex marriages that have taken place since they became legal in May 2004. But it would prevent future marriages of gay men and lesbians.

“This is democracy in action,” said Kris Mineau, president of the Massachusetts Family Institute, which sponsored the amendment. “It’s giving people the opportunity to vote on the most essential institution in human existence — marriage.”

Arline Isaacson, co-chairwoman of the Massachusetts Gay and Lesbian Political Caucus, choked back tears.

“The price that our children and families will pay is so severe that we simply have to recommit ourselves to fight this some more,” she said.

The swiftness of the vote on Tuesday surprised people on both sides of the issue, taking place without any debate, just minutes after the constitutional convention had been gaveled into session. Proponents of the amendment needed just 50 of the legislature’s 200 lawmakers to support it; the final vote was 61 in favor of the amendment and 132 opposed.

We should pause here and note that Massachusetts is just about the bluest state in the Union. I mean what other state would keep sending the broken down brain-dead alcoholic Ted Kennedy back to the Senate?

The fact is that if gay marriage can't get majority support in deep-blue moonbat loon Massachusetts what chance does it have in the real America? This is why Democrats so desperately want the issue to just go away. It is a sure winner for conservatives.

This is why Republicans need to keep pounding on the issue. Something like 70% of the American people want the federal constitution amended to forbid gay marriage. This is an issue which unites people across party lines and Republicans should play it for all its worth.