Saturday, June 03, 2006

Radio Hate

President Bush dedicated his weekly radio address today to declaring his support for the upcoming Senate vote on a proposed constitutional amendment that would nationally and permanently define civil marriage as between one man and one woman, and he argued that same-sex marriage is an issue for which we should be willing to dismantle the American system of democracy that has served us and functioned as a model for the rest of the world for more than 200 years.

You see, the President feels that the judicial branch of the government, which the Founders intended to be co-equal in power along with the executive and legislative branches, should be hamstrung by popular sentiment, prevented from upholding their obligation to the principles presently enshrined in the Constitution by the majority will. In short, the President seeks to radically redefine essential principles of western democracy in order to legislate hatred.

"Marriage is the most enduring and important human institution, honored and encouraged in all cultures and by every religious faith," said the President, though in his repeated call for preserving his "definition" of marriage he conveniently ignores that many cultures and faiths have marriage traditions quite different than the ones he is promoting, and he also ignores that there are faith communities within our own nation that bless and sanctify same-sex unions.

"The commitment of a husband and wife to love and serve one another promotes the welfare of children and the stability of society." Of course it does; but he, and every other conservative who's ever spoken on the subject, fails to address just how same-sex marriage would weaken those ideals. And how does the government "promote" marriage by denying it?

"In our free society, people have the right to choose how they live their lives," said the President, but clearly he does not believe that. "Every American deserves to be treated with tolerance, respect and dignity," he added. Such empty, empty words coming in the midst of a speech focused on denying fundamental rights to millions of American citizens. As a gay American, I feel neither tolerated nor respected by this President and his supporters. My dignity is not preserved by his efforts to enact federal legislation that says I am not worthy of the institution of marriage, that I am a threat from which other Americans need protection.

The President speaks repeatedly of overwhelming majority opposition to same-sex marriage in America, and yet the amendment he endorses is expected to fall far short of the 60 votes needed to pass, and may not even muster a simple majority. In two states where the high courts are pondering legalizing same-sex marriage, New York and New Jersey, the majority supports it.

A glance at the change in public attitudes toward marriage equality and homosexuality in general shows an accelerating trend toward acceptance. The President, whose own support is no longer anywhere near a majority, should take into consideration that it is not reasonable to expect that public opposition to same-sex marriage will endure.

But he knows that. All the conservatives know that. That's why they're rushing to do this now, while they still have a slim chance of success, and that's why they prefer to rely on the long, slow change in public opinion, rather than the swift justice of the courts.

In closing, the President made this curious remark: "Democracy, not court orders, should decide the future of marriage in America." I hang my head in nauseous shame that the President of the United States of America, who has gone all over the world promoting democracy and even launched a war in its name, thinks that courts are not only not necessary for democracy, they are antithetical.


Musicguy said...

God save us from the American Taliban. Great blog!

Silus Grok said...

Hey Andy...

While I understand where the post is coming from, I can't believe that you believe the premise of the first two paragraphs. You know as well as I do that the framers of the constitution planned for an amendment process to allow the constitution to grow... and blatantly absent from the amending process, is judicial review... which might lead one to believe that the framers were as afraid of an un-restrained judiciary as they were an un-restrained executive or legislature.

Andy said...

I guess I was unclear. I certainly don't think that the Constitution should be unable to be amended, and I also don't believe in an unrestrained judiciary (eminent domain -- ack!).

The proposed amendment will fail on its own merits, so I'm not really worried about it.

What scares me is the way the President deliberately misrepresents court actions in Massachusetts, Nebraska and elsewhere (presumably alluding to Georgia) to imply that "activist" courts are exceeding their authority and reaching extra-legal verdicts to advance an agenda.

This nonsense about "the will of the people" is classically illustrated by the Georgia case two weeks ago, where a judge threw out the state's ban on same-sex marriage, which voters passed with 76% in favor. Conservatives, led by Governor Sonny Perdue, accused the judge of "activism."

However, the lawsuit was brought because the ballot measure violated Georgia's single-subject law, meaning each item on the ballot can only seek to accomplish one thing. This particular ballot banned BOTH marriage and civil unions, two separate legal statuses. The judge was actually quite clear to say that she was not ruling on whether the voters had a right to ban same sex marriage, merely that the amendment as written was illegal.

It is this willingness to abandon integrity and make a case out to be something far other than it was for the purpose of creating fear in American citizens that the courts are running amok that we must confront.

Silus Grok said...

The difficulty we face is that we have a judiciary that is — in fits and spurts — activist in nature... and we have a legislature that is too lazy ( or scared ) to have meaningful discussions about difficult issues to notice ( or care ) that the judiciary is encroaching on legislative prerogative.

This is compounded by an executive ( not to mention a legion of legislative lap dogs ) that uses the term with reckless abandon — confusing the issue and desensitizing John Q. Public in the process.

Andy said...

I think it depends on what you want to call "activism." Bush intends for it to mean a judge who has exceeded his authority and ignored the facts of the case before him (I guess I should be writing this in gender-neutral language, to reach a verdict that suits his personal ideology rather than legal precedent and jurisprudence. I would agree with that definition, personally, and would soundly condemn as "activist" such a judge.

Silus Grok said...

But get me wrong... I think your point about the Georgia case is illustrative of a larger problem...

I just don't want to ( as you seemed to in the original post ) let the gross inadequacies of this executive blind us to the truths couched so lightly in the fertilizer that they so expertly spread.

Silus Grok said...

* don't get me wrong...

Silus Grok said...

I think that definition works for me, too.

Sadly it's used against anyone who disagrees with the executive ( or its handlers ).

So confusion ensues... and conversations like this one are harder.

Silus Grok said...

Of course, this would be easier if it were on the phone... but we have to work within the media we're given.

Silus Grok said...

You know what... I misread your opening paragraphs... I now see that you weren't missing the point: I was.

My apologies.

little-cicero said...

The opinions of justices are antithetical to democracy, not the courts. Think back to your seventh grade classes in American Government: The Judicial Branch INTERPRETS, the Legislature LEGISLATES and the executive branch EXECUTES the law. When you speak of justice, you truly speak of the greater good- what is best for the country, including the notions of equality and liberty, but that is not justice. Justice is the balance and the definitive separation of those powers which are stated above. It is a notion of the moral application of power based in an objective set of standards.

Were you a strict constructionist in your Constitutional outlook, I would not mind your emphasis on the Judiciary Branch nearly as much, but it is clear to me that it is YOU that is racing to bring "justice" through the court before it is too late. Is it not true that you are hoping to push this issue through the courts because there still exists for the issue a liberal majority on the court.

You cannot supplant the instructions of the Constitution with the "principles" you interpret from the Constitution that are not actually found therein. The Constitution states explicitly that if a duty is not covered by the Constitution, it is to be left to the states. Tell me where in the Constitution you see anything about marriage and I'll agree that either side should bring it up on the national stage.

Call me a federalist, but can we pleeeeeese get the Feds out of marriage?

Time said...

What bothers me is not if one is for or against same sex marriage,(I am for it) but that the right wants to change the Constitution.

Sen. Frist wants to re-introduce a Constitutional amendment to ban flag burning.

The Constitution as written, tries to be inclusive not exclusive. It talks in terms of rights to be given, not so much about rights not allowed.

It states that rights not enumerated would be left to the states to be decided. And it lays out a process to amend the Constitution.

The Constitution has not been amended very often in over 200 years. And usually for issues that correct a laspe in giving rights to a segment of our society.

Slavery, womens right to vote, and other inclusions that had been ommited by the founding fathers.

In fact the founding fathers might disagree with giving women the right to vote. They were aware that the Constitution would have to be amended to secure rights to future generations that would be living lives that they could not comprehend at the time.

But most important, in all this time the Legislators have stayed away from amendments that ban or take away rights or behaviors.

The one amendment that was recinded was the 18th amendment, one that tried to ban a behavior by the public. We should learn that using the Constitution in this manner does not work.

For one side to use the Constitution to promote only its political philosophy is wrong and it just does not work.

The Republicans want an amendment to ban gay marriage, an amendment to ban flag burning, an amendment to ban handguns, and more, and more. We might as well rewrite the whole damm thing.

Their polls are down and these bills are an attempt to boost their base and side step the duties of the courts because they disagree with the decisions of the courts.

Issues that divide the country not unite the country. The country has lost confidence in the Republican party, they have lost, they are lost.

The fact that the Republicans need to change the Constitution so drasticly, shows that they are truely way outside the mainstream of the average American people.

This got way to long, sorry I should have made it a post on my own blog.

Andy said...

Is it not true that you are hoping to push this issue through the courts because there still exists for the issue a liberal majority on the court.

No, it's because people should not be made to wait for fundamental rights that are already theirs. The courts are not liberal: the majority of justices now serving on federal benches are Republican nominees, thanks to the Reagan, Bush I and Bush II appointments. We win because we are right, not because we have "liberal" sympathizers on the bench. The organization I work for has scored major legal victories in Virginia, Georgia, Oklahoma, Nebraska, Indiana -- real "liberal" hotbeds.

Forget this "strict constructionist" nonsense. Even you can recognize that a) sometimes laws that have been passed have been found to be illegal/unconstitutional and b) sometimes other laws or guiding legal principles are found to override other laws. Was it an irresponsible activist court that decided Loving v. Virginia? What about my recent first amendment/religious exemption post: even you would attest that the "strict constructionist" reading of the first amendment protections for the "free exercise of religion" is worthless because no one accepts the idea of religious exemption for generally applicable laws such as murder, taxes, etc. You may call it "legislating from the bench" if you like when judges throw out bad laws, but it's their job.

little-cicero said...

Well of course US Law is on an equal par with the Constitution according to the Constitution, so while that is hardly pertinent to Same Sex Marriage, it allows a specific law to override a general right such as the "free exercise clause" as long as that law has been ruled Constitutional. Is a law against murder constitutional in the strictest interpretation? Of course, because that is outlined in the law of the land. If a law is dubious in its constitutionality, it is challenged in the Supreme Court and the court decides whether it is constitutional. That is precisely what the court is supposed to do, so what's the problem with relying upon law on the same plain with the Constitution in the process of interpretation. Ultimately, that is supported by the Constitution in Article Four.

But how is this pertinent to the issue at hand when there is neither a law nor a Constitutional clause referring marriage in existance.

Robert Bayn said...

Here is How Judicial Activism Works:

If your a conservative and the judge promotes a conservative agenda, It's A OK, like the 10 Commandments or Pro-Life.

If your a liberal and the Judge promotes a Liberal agenda, Pro-Choice or Same Sex Unions, It's OK!

The problem is neither side wants to be honest and say that is what the case is. Underlining problem with Same Sex Unions is this, we have a clause in our Judicial System that guarantees everyone, Equal Protection Under The Law, if a Judge is to interpret the Constitution accordingly to that alone (because there are no laws that say marriage is between 1 man and one 1 woman), the Judge would have no choice but to say, gays can be legally wed, under the Equal protection Clause. The Reason guys like Bush and other Politicians want the Amendment, is because they already know this to be true, and in order to gain any ground in the Court system, they need to have a law, or they will continue to fail.

I feel bad for the judges who are applying the Equal protection clause to gay marriage and gay unions, because they will be identified as Activist Judges no matter what they do. In the End, discrimination has no place in the American Judicial System, if we allow discrimination in, we open the flood gates for laws to be introduced to discriminate, against Blacks, Latinos, Jews, Orientals, List goes on and on.

Bottom line if you don't want gays to get married, don't marry one!

Travis said...

This was clealy NEVER a policy which anyone expected (or feared) would win.

When this policy first failed, it came at the benefit of GOPS.

That is no longer the reality, voters have woken up to reality of how their lives are affected by taxes, war, etc.....

In which now leaves ONE intention....


This remains a BIG question......

If Howard Dean is WISE, he will schedule the DEM primary LATE, LATE in the electoral season.

Andy said...

there is neither a law nor a Constitutional clause referring marriage in existance

I'm not sure I understand what you're saying. Yes, marriage, as far as I know is not (yet) mentioned in the U.S. Constitution. But there are several laws about marriage (DOMA, for one, which will be found to be unconstitutional in the near future as an express violation of Article IV's "full faith and credit" clause) and many court cases (as previously mentioned, Loving and Turner among others) that establish marriage as a fundamental right.

If a law is dubious in its constitutionality, it is challenged in the Supreme Court and the court decides whether it is constitutional

Well, yes, absolutely correct, and that is what is happening here. Having established that marriage is a fundamental right, and having cited New York State's Equal Protection Act (this case made no federal claims so the State court will make the final decision, it will never go before the SCOTUS) we have asked the court to consider whether there is truly a rational basis for denying same-sex couples the right to marry. The court is doing exactly what you said it should do.

Jeff said...

DOMA, actually, could be constitutional, because courts have found an implied "public policy" exception to the Full Faith and Credit clause (a state can choose not to honor another state's law if that law offends the public policy of the forum state). Even if that issue is debatable, it's at least a good hook for a court find DOMA constitutional, which is a moderating influence that could help satsify people and keep them from supporting the FMA. So I expect DOMA will be around for a while.

little-cicero said...

I agree entirely that any ban on marriage should be Constitutionaly interpreted, as should any definition of marriage, but since neither is at the Federal level, neither should be examined by SCOTUS. Of course if the President's ban goes through, it is likely that this law will be challenged in SCOTUS, but for the time being, the issue ought to remain at the state level.

The problem with relating State SC decisions to the Federal Supreme Court, it seems to me, is that state law as instructed in Article Four, are to have no bearing or dominance in Federal interpretation. Obviously that has been the case several times in this country, but why should it matter what a State's court has to say to the federal courts?

Andy said...

why should it matter what a State's court has to say to the federal courts?

It doesn't and it shouldn't, at least in this regard. Yet consider this: we are likely to be very soon living in a country where same-sex couples can be married in Massachusetts, New York, New Jersey, Connecticut, Maryland, Washington and California. How long will it be before the theoretical "compelling government interest" of promoting heterosexual marriage, procreation and opposing divorce is shown to be utterly unaffected by widespread same-sex marriage? What case will the federal government be able to make -- or any state government, for that matter -- to continue the ban?

Anonymous said...

Andy, have you too bought into the revisionist history?

"... [Bush] has gone all over the world promoting democracy and even launched a war in its name ..."

As I recall the war in Iraq was launched to protect us for Weapons of Mass Destruction. It was only later, when no WMD were found, that the goal of the war was to bring democracy to the middle east.