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June 29, 2015

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Ah, the Supreme Court judgment!

We’ve discussed this no end (I have, I mean to say, offline) and there are two aspects of this that I haven’t found satisfactory answers to.

One : No matter the actual issue, and one’s position on the issue (mine’s pro-judgment, incidentally, as is yours, and as should be every right-thinking person’s), but the manner in which it was brought about is distinctly dicey. Wholly undemocratic.

There’s something unsavory about a people having something shoved down their throats, even if it is something wholly benignant, such as abolition of slavery, or same-sex marriage, or abolition of religion. That’s dictatorial, with all the attendant potential for disaster (even while, in theory at least, the benevolent dictatorship remains the ideal form of government -- always provided it continues to be seen as benevolent by the subjects).

And Two : I find this whole fixation with Christianity very very curious. Because very many of those who swear by Christianity are also parochial and insular, even borderline xenophobic. Indeed, their religion is often an extension of those very traits (parochialism and insularity). Do these people really realize the dude they’re praying to is basically a brown-skinned dude from the Asiatic Middle East?

This is so weird, this This-Is-How-We-Are line of thinking amongst Christians in the US. I think if someone ran a protracted campaign emphasizing how ALIEN, how decidedly non-American and non-European, how brown (sorry if that sounds racist, but I only mean to highlight the differences in my argument here, and race happens to be one of the outstanding differences), this dude, this Jesus Christ was (if at all he ever was, that is), then that itself would, if dinned repeatedly into people’s skulls, perhaps turn off very many of these fundamentalist types. Or, of course, not : fundamentalism does work in mysterious ways. Still, might be worth trying?

Let's require everyone whining about the unelected justices making law post all their complaints about Citizens United and Hobby Lobby and Bush v Gore, all cases where the reactionary wing nut majority radically imposed their partisan preferences with no constitutional basis and cost the court its legitimacy.

The only thing with same sex marriage is that Kennedy just doesn't hate enough; sure he's a corporate tool, perfectly happy to sell out real people to put corporations in charge, but when it comes to same sex marriage, the dominant corporations are all for it, so Kennedy was allowed to vote however he wanted, and he still possesses a small measure of humanity, unlike the loathesome four, Alito, Roberts, Scalia, and Thomas.

Hilarious, Brian. Great post.

There’s something unsavory about a people having something shoved down their throats, even if it is something wholly benignant, such as abolition of slavery, or same-sex marriage, or abolition of religion.

The only people who feel same-sex marriage is being "shoved down their throats" are homophobes who can't stomach the prospect of losing their right to discriminate against a particular class of people. Racists felt similarly force-fed by the repeal of segregation.

The only supreme court decision I'm choking on is Citizens United v F.E.C. Clearly, homosexuals and people of color are as human as those who would discriminate against them, but a corporation is not a person.


Quote x :

The only people who feel same-sex marriage is being "shoved down their throats" are homophobes who can't stomach the prospect of losing their right to discriminate against a particular class of people.


No, x, afraid I don't agree. (Naturally, as I'd then be agreeing to being labeled a homophobe as well as racist, and I don't believe I am either.)

I was talking about the principle of democracy (as so many others have gassed on about when talking about this topic), which, for all its flaws, is nevertheless the best system of arriving at laws and systems that our species has come up with.

We've also come up with totalitarian systems, and sometimes such systems can far outperform democracy over short spurts (and sometimes somewhat longer spurts) -- across factors like efficiency, justice, equality, everything -- but always, always, those spurts end after a while.

When you have one small group of people enforcing their values on a much larger group of people, then even thought the specific values may be unquestionably benignant, questions still remain. Simply because whether something is "unquestionably" benignant or not depends squarely on who it is who's doing (or not doing) the questioning. I'm sure many would like to be empowered to pass laws that prohibit all kinds of stuff, like religion, like committing slow suicide by smoking cancer sticks, like ... well, like anything at all, but if the imposition of such laws is not democratically done, if it does not have the explicit backing of the majority of the people it governs, then surely the danger lurking there is obvious? What if tomorrow some other small group found themselves able to impose a (to them) obviously benignant law that ensures that one is very actively discouraged from harming their (and others') souls by blaspheming?

The principle of the thing, that was my point. I'm personally all four same-sex marriages myself.

Appreciative Reader, your comments that what the United States Supreme Court did in making same-sex marriage legal everywhere in this country is a "dictatorial" act would strike most Americans as strange.

Our Constitution, of course, sets up the Court as a co-eqiual branch of government along with the Executive and Legislative. Countries have to be governed in some way. The Constitution isn't perfect, but it works pretty well.

Without a Supreme Court to interpret and rule on the constitutionality of laws, the danger of being ruled by an over-zealous majority that controls the legislative and executive branches would be very high. I don't believe rights are given by God. They are enumerated in the Constitution though.

One of this country's strengths is how citizens generally accept rulings of the Supreme Court even if they don't like them. The Court installed George Bush as President on a 5-4 vote. Liberals like me were outraged. We didn't revolt though. Likewise, most conservatives will accept the same-sex marriage ruling.

Yes, we still have a Tyranny of the Majority in many ways. That is inherent in democracies. However, without a Supreme Court this tyranny would be much more dangerous. Usually the Court is sensitive to changing public sentiments. This is the case with same-sex marriage, which most people have come to approve.

But in conservative states, it would have taken a long time for attitudes to change. Gays in those states would have been denied their right to marry, while most of the country moved on to a more enlightened attitude. So the Court did the correct thing -- recognizing a Constitutional right that can't be taken away.

I suppose the correct approach to this issue would be to actually read the judgment, and then to actually check out the relevant portions of the US Constitution, and only then get down to forming (and expressing) one’s own opinion on this issue. Anything else would be simply lazy. And I’m afraid I’ve been guilty of exactly this : of forming opinions (and talking of them) without first ensuring that those opinions are actually built on facts.

I was assuming that the SC judgment impinges on the law-making function of the Executive (borderline-impinges, that is : blatant impinging on the Executive’s function would, I’m sure, be neither attempted, nor, if attempted, allowed to pass unchallenged). If I’m wrong in making that assumption (which is what you seem to be saying in your comment), and if all the Supreme Court has done is to simply interpret the law (which, after all, is what its primary responsibility is), well then, I’m wrong in labeling this interpretation as dictatorial.

But if it is the case that the Surpreme Court has encroached (borderline-encroached, that is) into what ought to be the domain of elected representatives of the people (which, it seems from your comment, is NOT the case), then we see a “good” decision passed in ways that are distinctly dangerous. But of course, that seems not to be the case, and so what I say does not apply!

Incidentally, this raises interesting questions about the nature of “truth”, and of what is “right”. For instance, the abolition of slavery in the US -- while doubtless an unarguably “good” and “right” decision -- was imposed on large swathes of the population who were then opposed to it. (Again I'm being lazy in simply going by my impression -- and without cross-checking my impression, which could after all be wrong -- that they never actually held a referendum at that time to decide the issue.) The only reliable system we have today is the democratic one : which, as you rightly point out, can result in “tyranny of the majority”. I personally am all for getting rid of the pseudo-legal status that some religions enjoy (notably the Pope and his hordes in many parts of the world, and the representatives of the Prophet [PBUH] in other parts of the world -- both these can actually compel followers to pay up tithes or Zakat, and also can, in some cases, actually influence actual punishment for all kinds of weird “offences” like blasphemy, apostasy, and what have you). But to attempt to do this in the teeth of the views of the majority would be dictatorial, we’d then probably be administering medicine that could be worse than the disease it seeks to cure.

I suppose we have no option but to live with this “tyranny of the majority” (it would be “tyranny” only when our views differed from the majority’s, I suppose). What I was talking of was, actually, “tyranny of a minority that happens to be in a position to have their views imposed on others”. That’s what I’d thought the SC judgment was. If that isn’t what it was (technically speaking, basis the relevant terms in the Constitution), well then, it’s all good : a just judgment passed in perfectly legal ways.

But why, then, do the howlers howl? So many of them? Are they all actually bigots and homophobes who are personally against gay rights? Or are they, too, like me, lazy people who’ve been gassing off about what they thought was happening, without taking the trouble to actually read the judgment and check the Constitution and the laws?

Appreciative Reader, the basis of the Supreme Court decision is that people have to be treated equally under the law. If a state has a law allowing two people to marry, they can't discriminate between people, permitting some to marry and turning down others.

So the Supreme Court didn't really make a new law. It simply ruled that existing laws have to be applied equally to everybody. See:
http://legalinsurrection.com/2015/06/supreme-court-ruling-gay-marriage-a-constitutional-right/
-------------------
Quote from ruling:

"These considerations lead to the conclusion that the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty.

The Court now holds that same-sex couples may exercise the fundamental right to marry. No longer may this liberty be denied to them. Baker v. Nelson must be and now is overruled, and the State laws challenged by Petitioners in these cases are now held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite sex couples. [at 22-23]"

Thanks for the link, Brian. Having spent so much time "opining" on this issue, it's about time I spent a little bit more peering into the horse's mouth. I've taken a print-out, to go through later (being one of those apparent dinosaurs who like to do their heavyish reading via paper).

Just a thought, without at this time having actually gone through that print-out: if "two people marrying" is interpreted simply as "any two people marrying", might that not open the floodgates on all kinds and shades of "unions", threesomes, foursomes, all kinds of permutations and combinations? That seems an obvious enough extension, although I don't think I've seen this mentioned or heard it spoken of. Not that there's anything necessarily wrong in an officially sanctioned foursome, if that makes the four involved happy.

I'm firmly for same-sex marriages myself, and in any case have no skin in this particular ruling, but I'd have thought it would be cleaner to specifically legislate these things, without any scope of ambiguity. I expect that "two people" marrying back 250 years ago would have implied "two people of different sexes" entering into "exclusive matrimony". I doubt the Founding Fathers would have meant anything different. They were wrong in so implying, true ; also true, that we have no need to stay imprisoned in narrow values of the past : so why not bring in the change cleanly through the front door? I mean that's what legislators are meant to do, right, make laws?

But there I go, gabbing off again without first having read the stuff. The ruling is what it is, and thanks for link.

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