Newt Gingrich, the GOP and “Selective Defiance”

For all their cries of executive overreach in the Obama Administration, today’s GOP hopefuls seem to be in the mood for a little presidential muscle-flexing themselves. Newt Gingrich, Rick Perry and Michelle Bachmann have led a campaign against the powers of the federal judiciary this year, going so far as promising to disregard “unfavorable” federal court rulings. As Bob Egelko of the San Francisco Chronicle writes:

” At a debate Tuesday night sponsored by the antiabortion group Personhood USA, [GOP] candidates were asked how they would respond to a Supreme Court ruling overturning a law that declared life begins at conception.

“Obviously, you enforce the right to life,” answered Texas Gov. Rick Perry, according to news accounts.

Rep. Michele Bachmann, R-Minn., said it was time for Congress and the president to “reclaim that authority to make law…The Supreme Court can’t arbitrarily tell us what the law of the land is.”

That position dovetailed with the views Gingrich has espoused in recent weeks, calling for an end to “judicial supremacy” on subjects such as abortion, gay rights, school prayer and national security. He has proposed forcing federal judges to justify their rulings before Congress, impeaching and removing them from office for wayward decisions, abolishing their courts and selectively defying their rulings.”

Every so often, a politician makes a statement so ridiculous and patently hypocritical, that any critique is self-evident, so I’ll confine myself to two observations. Firstly, in asserting that the executive branch should have the power to “selectively defy” federal court rulings, Gingrich and Co. have staked a position entirely foreign to our political culture. It isn’t a conservative position, and it certainly isn’t liberal a position; in fact, it simply has no business in a liberal democracy under the rule of law.

As much as I hate the demagogic phrase “un-American,” I cannot imagine a more apt time to use it.

This leads me to my second observation—ideological consistency regarding the proper scope of federal court authority has never been the GOP’s strong suit. For instance, one need look no further than the Republican reaction to the 2008 Supreme Court case of District of Columbia vs. Heller, in which the Court overturned the city’s ban on handguns. As GOP presidential contender John McCain stated at the time,

“Today’s decision is a landmark victory for Second Amendment freedom in the United States. For this first time in the history of our Republic, the U.S. Supreme Court affirmed that the Second Amendment right to keep and bear arms was and is an individual right as intended by our Founding Fathers. I applaud this decision as well as the overturning of the District of Columbia’s ban on handguns and limitations on the ability to use firearms for self-defense…Today’s ruling in District of Columbia v. Heller makes clear that other municipalities like Chicago that have banned handguns have infringed on the constitutional rights of Americans…today, the Supreme Court ended forever the specious argument that the Second Amendment did not confer an individual right to keep and bear arms.”

A state legislature democratically enacts a law and the Supreme Court is justified in overturning it? There’s no explanation for such brazen cognitive dissonance aside from the conclusion that the GOPers aren’t really concerned with debating the philosophical issues surrounding Supreme Court authority; they want to impose a specific ideology, using whatever means necessary and without regard for legality or jurisprudence.

Of course, one might object that such is simply the nature of politics regardless of party, and one would be partially correct. W need look no further than the absurd debate surrounding the National Right-to-Carry Reciprocity Act (in which Republicans argued in favor of an expanded gun rights bill on the basis of federal authority while Democrats argued against it on the basis of state’s rights) to see that neither side cares about legal process as much as implementing a specific agenda. But before we begin assigning false equivalence, I’d like to posit that the kind of political doublespeak coming from the GOP on the issue is particularly bald-faced and audacious.

Let’s rewind to the third presidential debate between Barack Obama and John McCain, for, as Jon Stewart puts it, a moment of Zen:

SCHIEFFER:…Senator McCain, you believe Roe v. Wade should be overturned. Senator Obama, you believe it shouldn’t. Could either of you ever nominate someone to the Supreme Court who disagrees with you on this issue? Senator McCain?

MCCAIN: I would never and have never in all the years I’ve been there imposed a litmus test on any nominee to the court. That’s not appropriate to do.

SCHIEFFER: But even if it was someone — even someone who had a history of being for abortion rights, you would consider them?

MCCAIN: I would consider anyone in their qualifications. I do not believe that someone who has supported Roe v. Wade that would be part of those qualifications. But I certainly would not impose any litmus test.”

How convenient.

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7 Arguments for Gay Marriage

The August 4 landmark ruling striking down Proposition 8 as unconstitutional in Federal court is just the first act of the legal drama yet to come on the issue of gay marriage. Federal court Judge Vaughan Walker declared that “the ballot initiative violated the Constitution’s due process clause and its guarantee of equal treatment”. At the heart of Walker’s decision was his conclusion that there exists no rational basis to exclude gays and lesbians from the institution of marriage.

Like any juicy political drama, this ruling was bound to produce some angry heckling from the crowd; Minnesota Rep. Michele Bachman criticized Judge Walker’s ruling, stating that it was yet another case of a “progressive activist judges who issue their personal moral pronouncements under the guise of constitutional law.” Funny that the term “activist judge” doesn’t apply in the case of Citizens United v. FEC case, which overturned decades of financial regulatory legislation—but that’s another story.

Aside from the beltway, the issue of gay marriage seems to be one in which everybody has an opinion—and a strong one. It is likely true that gay marriage is the civil rights issue of this generation, and in the spirit of hearty debate, I took to the internet to find out what people thought about the issue.

Of these conversations, I charted approximately seven arguments in opposition of Gay Marriage. Doubtlessly this list is not exhaustive, but these seven seemed to sum up most of the opposition to the issue I have heard thus far. Here are these arguments and my thoughts in response…

The “Will of the People” Argument

“The ban is the will of the people. No judge should disrespect the will of the people.”

While such a claim seems easy to defend, given its stalwart support for the democratic process, I think it misses an integral component of the ideological foundation of this country.

Going back to Immanuel Kant’s conception of inherent human worth, as every being capable of rational thought is an “end-in-itself”, and its influence on the classical Liberal tradition of natural rights, such as are imagined by John Locke, reinforced by philosophers like J.S. Mill and codified into law by the Founding Fathers, there are certain properties, which we refer to as rights that inhere in any human being.

These rights, which society exists to safeguard, cannot rightly be taken away regardless of whether such abridgment is the will of the people. This means that even if everyone in the country voted to mandate that I never speak again, this overwhelming majority would lack the authority to stifle my inherent right to free speech.

Judging by the fact that the law and our Constitution mandates that all people are born equal, insofar as it is illegitimate to discriminate based on one’s non morally relevant characteristics (properties that are not chosen, “accidents” of birth—race, parentage, sex, etc), and that there doesn’t exist any compelling legal reason why sexual orientation should elicit differential treatment under the law, I would argue that the rights of homosexuals should legally be immune from the decisions of the will of the people.

Ted Olson, one of the attorneys who won the momentous victory overturning Proposition 8 stated this case well. On Fox News Sunday, challenged as to why the people of California shouldn’t have the ability to define marriage, Olson responded, “Would you like Fox’s right to free press put up to a vote?…These are fundamental constitutional rights. The Bill of Rights guarantees Fox News and you, Chris Wallace, the right to speak. It’s in the constitution. And the Supreme Court has repeatedly held that the denial of our citizens of the equal rights to equal access to justice under the law, is a violation of our fundamental rights.”

The “Government Has No Business Meddling with Religion” Argument

Turning to a different conversation thread, one member of the online community presented an argument that was quite apt—that government simply has no business getting involved in marriage: “Marriage is an institution of the church; therefore, it is immune from being controlled by the state. A state cannot legalize marriage between homosexuals… Homosexuals can have their own private civil unions, but public displays of marriage are only reserved for heterosexuals in the house of God.”

I agree that religious matters are beyond the purview of the state, and to compromise these borders threatens the separation of Church and State. However, as things stand now, the State does recognize marriage—that is, one can be married within a religion, and the state will recognize it as a marriage per se, not as a civil union. The logical inconsistency here is that the State recognizes the concept of “marriage” in the first place. If we want to hold true to the separation, the State shouldn’t recognize marriage at all; if people get married in a place of religious worship, they should be “married” within their faith, based on its theology, but in the eyes of the State, they should be recognized not as “married” but rather “civilly-unioned”.

The fact that the State recognizes this category means that it is privileging religion, as the State then codifies these religious dictates into law. I suppose this means that properly speaking, I’m against state-recognized gay marriage. But it also means I’m against state recognition of all marriage.

By the end of that conversation, I knew that my interlocutor and I would not see eye-to-eye—there was just a bit too much fire and brimstone clogging up the debate

The “Gay Marriage Harms Society” Argument

I then moved on to address another argument—that gay marriage is detrimental to society in that it doesn’t produce the necessary social benefits of heterosexual marriage, “namely the procreation of children raised to maintain life through the future… Homosexuality/Lesbianism does not contribute to the highest and best of community life. They breed all manner of disease potential including deviate [sic] behavior and mental illness…”

Aside from the blatantly incorrect claims about homosexuality and its proclivity toward spreading disease and illness, I tried to address what I thought was an argument that rested on several invalid conclusions.

Firstly, if traditional marriage’s sole purpose and the reason it deserves special status under the law is that it allows for procreation, then heterosexual couples with no offspring, don’t deserve the same protection as married couples with children. Is this a conclusion society willing to support?

Secondly, regarding the “dysfunctional” nature of homosexual couplehood, it is disquieting to consider that divorce rates in this country are staggeringly high; an average of 41% of first time marriages and an even greater percentage of second and third marriages end in divorce. If one considers divorce to be a dysfunction of marriage, then heterosexual marriages quite likely to be dysfunctional. However, we do not take into account this potentiality for dysfunction when agreeing as a society to sanction heterosexual marriage. Furthermore, when people get divorced, the law does not deem them as co-participants in an act of social dysfunction, and none of their rights are abridged. Society even allows divorcees to marry again despite their proven negative track record. Therefore, on what basis other than a double standard can one then account for the claim that homosexual marriage should not be allowed because of its dysfunctionality?

The Special Privileges Argument

But in terms of double-standards, the next argument takes the cake. It actually would have been comical if it weren’t people’s rights we were talking about: “They have equal treatment already. Any man can marry anyone provided that person is:
1. An unmarried woman, and
2. Has reached the age of maturity, or
3. Has parental consent.
No man can marry anyone who does not meet those criteria. That means everyone had the same rights…Now, a judge has decided some people need special privileges.”

Thinking about the “special privileges” claim, I had to respond to the sheer unfairness of this argument.  How can it be that homosexuals receive special privileges that heterosexuals do not if the former aren’t allowed to marry the consenting adult of their choice they choose while the latter are?

This argument is like saying, in a country which mandates a state-religion, “everybody has the same rights because everybody has the right to be Christian and nobody has the right to be Jewish, Muslim, Hindu, etc.” For a member of these other religions, being able to practice one’s faith in this hypothetical country is not a “special privilege,” it’s a matter of equality under the law. And that’s where that conversation ended.

The “Unnatural” Argument

But no debate about homosexuality and gay marriage would be complete without the requisite “it’s just not natural” argument, and that’s exactly where I turned next.

The problem with the “no parallel in nature” argument, is that it’s simply wrong, and those who make this claim should  consider the work of Dr. Joan Roughgarden, a biologist at Stanford University, who states that more than 300 vertebrate species have been found to practice homosexuality.

But to take the argument further, I don’t think people who make the “unnatural” argument quite realize its logical conclusion. If we establish a standard by which something is judged as acceptable based on whether it is found in nature, then anything not found in nature is thus rendered unacceptable. This means that the keyboard I’m typing on, the computer I’m working on, the chair I’m sitting on, the desk I’m occupying, the building I’m located it, the car I use to get to work in, the street I drive on are all unacceptable. All of a sudden, a whole host of human behavioral patterns that aren’t mirrored in nature become unacceptable—from dinner parties to international diplomacy. Even the sedentist agricultural foundation for modern civilization is called into question.  At this point, the distinction between “natural” and “unnatural” seems to have no meaning, for it doesn’t include a mechanism for adequately determining to what extent humanity is part of nature and at what point our higher cognitive capabilities separate us from the natural world. The conclusion to this absurd line of reasoning is simply that using nature as our guide for what is acceptable automatically invalidates almost every single part of the human experience.

The “States Rights” Argument

One of the most challenging arguments I heard that day was the claim that the recent ruling infringes on States Rights, and represents a wider threat to the separation of powers by augmenting the scope of the Federal Government; This is an issue for each state to decide. States are not political subdivisions of some Empire. This is a Republic with a federal government having limited enumerated powers, not an Empire. Each state has its own requirements for marriage and a marriage license, just like driver’s licenses, business licenses, and professional licenses. The people of each state shall decide for themselves.” Thus, by extension, since the definition of marriage is not an enumerated power of the Federal Government, it is a power reserved for the states to decide individually (see: 10th Amendment and Federalist #45).

Aside from the fact that, the legal category of “marriage” is actually a cross-state, federally recognized designation, accepted by each state regardless of the location of its inception, while civil unions are not federal designations recognized outside of the state of their sanction, I think this argument rests on one glaringly incorrect premise—this case has nothing to do with the Federal Government. This argument omits the fact that the Federal Courts are part of the Judicial branch.

States rights rests on a blanket clause vesting all rights not specifically granted to the Federal Government with the States or the People. However, even granted this blanket clause, there are certain acts and decisions that neither the Federal Government nor the States have the authority over—our fundamental rights.

The point is not that the Federal government has legitimate authority to make decisions concerning our rights, but neither do the states—that power rests with no branch of the government. The very fact that the Judicial branch can overrule an Executive or Legislative act pertaining to our rights (as per Marbury v. Madison) means that they are essentially outside the sphere of any authority to abridge. This is not a case of the Federal government overstepping its powers, this is a case of a branch of government acting precisely within its sphere of authority.

The “If We Allow Gay Marriage, What Next…” Argument

And finally the coup de grace, the “slippery slope”—absurd by nature yet extremely difficult to dismantle logically.

Using your logic, are you going to support polygamy?
A man and two women?
Two men and a woman?
Three men?
Four women?
Or any combination?

Where do we draw the line? There isn’t an easy answer to this challenge. The slippery slope argument is so powerful because it’s often impossible to find adequate reasoning to draw a resolute line within a subtle spectrum. But it’s also the reason why the slippery slope argument is misleading and fallacious.

In essence, the slippery slope proposes that any change in the “traditional” structure marriage will result in the “deterioration of all other marital restrictions”. If this were the case, incestuous or polygamous marriages, as well as a whole host of other deviant relationships such as necrophilia are only a hop skip and a jump away. (I can just imagine closet necrophiliacs anxiously waiting for the legalization of gay marriage so they can start raiding city morgues). Once we open the floodgates, there will simply be “no restrictions on the form or function of marriage.”
The problem with this is argument, according to Dahlia Lithwick, is that it is intellectually dishonest and its logical conclusion “implies that no social reforms should ever be undertaken”. But if cases in which countries have legalized gay marriage are any guide, there is no necessary link between it and all the evils of Pandora’s Box; “Countries such as Denmark, Sweden, Canada and the Netherlands have all legalized same-sex unions without legalizing polygamous or incestuous ones.”

Why? slippery slope arguments assume that one thing necessarily leads to another—and another, and another, until before we know it, we’re in strange and terrible territory. It thus concludes that, to avoid a negative outcome, we mustn’t undertake the action in question. The fallacy in this assumption is that there is no necessary connection between the steps—restraint is possible,

An epistemological problem with slippery slope objections to gay marriage is that statements such as “gay marriage will lead to bigamy, polygamy, incest, adultery, bestiality…” are projections into an “unknowable future”. Asking proponents of gay marriage to prove these marriages won’t be bad for kids/families is equivalent to demanding one prove a negative—a logically impossible task. Ultimately, “The law cannot know the future social effects of legalizing gay marriage; we can only determine whether it is fundamentally unfair to bar a whole class of citizens from a privilege constitutionally afforded the rest of us.”

Thus, we must recognize that slippery slopes are metaphorical at best, and should not be heeded as a necessary continuum of social change. It is, after all, possible to critique and evaluate each step on the slope by its own merits.