Comments

1. #1 Feddie

   April 3, 2004

   I am sure this post will please your readers, but, with all due respect, your paraphrase isn’t even close to being accurate.

   We are all sinners. My sins are no less sinful than those of a gay person. The difference is that I am not trying to get government to endorse my sins as positive behavior.

   Also, every law is an expression of a value choice. Why should my value choices be extracted from the marketplace of the ideas? Because you don’t agree with them or consider them antiquated?

   I’ve read your blog before, and I think much of what you say is worthy of consideration. This post, however, is beneath someone of your abilities.

2. #2 NBarnes

   April 3, 2004

   Also, every law is an expression of a value choice. Why should my value choices be extracted from the marketplace of the ideas? Because you don’t agree with them or consider them antiquated?

   Um… nice subject change. Very slick. Totally meaningless.

   We’re not talking about the marketplace of ideas here. Have you already forgotten that we’re talking about an amendment to the Constitution? We’re not extracting your values from the debate, we’re saying that the pain the violation of your values inherent in two boys or two girls getting married causes you is less important that the principle of minimal government intervention in the affairs of individuals and of states. Prove to us that meaningful harm comes to you as a result of gay marriage and we’ll, like, start to care.

   You’re welcome to say that ‘My religion teaches me that homosexuality is wrong and therefore I want a law, a federal law, to make sure that states, all states, don’t let two gay people get married.’ And I’m welcome to tell you that, in general, you need more than religous teachings to get over the ‘we need a federal law about this’ bar.

3. #3 Feddie

   April 4, 2004

   You mean an amendment to the Constitution, as opposed to rule by judicial fiat. I’ll take the former, thanks.

   Moreover, it would seem to me that your side has the burden of proof, not mine. I am not the one trying to radically transform the institution of marriage (indeed society itself).

4. #4 Ed Brayton

   April 4, 2004

   Feddie writes:

   I am sure this post will please your readers, but, with all due respect, your paraphrase isn’t even close to being accurate.

   What exactly is inaccurate about it? You do say that gay marriage is an “abomination”, and you make no argument for this other than a strictly religious one, and you do say that you want the law to impose that view on others by preventing gay marriage. Hence, the first part of my paraphrase is accurate. You link to an article that contains pointed criticism of your view and then go off into the “oh poor persecuted us” thing. And you do quote the famous passage from John 15 where Jesus tells his followers that they will be hated and persecute just like him, and you use this to tell your fellow Christians that it’s okay, that they can withstand this hatred and persecution because Jesus did too. My paraphrase was not terribly charitable, I admit, and it was dripping with sarcasm born of perhaps a bit of exaggeration. But I don’t think it was inaccurate.

   We are all sinners. My sins are no less sinful than those of a gay person. The difference is that I am not trying to get government to endorse my sins as positive behavior.

   I think you have the difference exactly backwards. The difference is that other people aren’t trying to use the law to impose their views of sin on you. To the Hindu, eating beef is a sin. To the Muslim, eating pork is a sin. They offer no argument for why this is true other than their religious traditions, just as you offered no argument for your position on gays other than your religious traditions. So is religious tradition alone an adequate defense of a legal prohibition? I predict you’ll say no in every circumstance where the religious tradition is not your own.

   Also, every law is an expression of a value choice. Why should my value choices be extracted from the marketplace of the ideas? Because you don’t agree with them or consider them antiquated?

   Who exactly is arguing that your ideas should be “extracted from the marketplace of ideas”? Your position on gay marriage is well represented in the marketplace of ideas, is it not? You have the president making the case for your position in the State of the Union address, you have a constitutional amendment proposed in Congress and authored by some of the most powerful legal scholars in the country, you have hundreds if not thousands of magazines and newspapers advocating your position. It seems that you think that if those who disagree with you dare to say so publicly, they’re “extracting” your position from the “marketplace of ideas”. So what would you do, extract their position from the marketplace of ideas and declare yours immune to criticism?

   As far as the first claim goes, that every law is an expression of a value choice, this sounds remarkably like Bork’s statement on the Griswold case:
   

   “Every clash between a minority claiming freedom and a majority claiming power to regulate involves a choice between the gratification of the two groups…why is sexual gratification more worthy than moral gratification?”

   Surely you would not argue that all “value choices” in terms of legal prohibitions and impositions are equally valid or legitimate. Taking the example above, if there was a Muslim majority and they passed a law banning you from eating pork, I doubt you would say, “Oh well, that’s okay. After all, every law is an expression of a value choice.” They would even make the same arguments that you would if you tried to change such a law – the majority is in favor of it, the scriptures declare it to be a sin, and you are attempting a “radical transformation” of what has been true for 3500 years of religious tradition. None of those arguments would you find the least bit convincing, I imagine, because you do not share a belief in that religious tradition.

   The answer seems obvious to me. If you want the law to impose your “value choices” on others by preventing them from doing something they wish to do, there must be some compelling justification for it beyond “the bible says so”. The bible contains many laws and rules that you would not dream (one would hope) of writing into the law. The mere fact that you object to it is not a legitimate justification. Nor does the fact that you have a majority a legitimate justification. Nor does the fact that you can cite longstanding religious traditions to support your position, any more than a Muslim majority could legitimately impose a ban on pork using the same arguments. This goes back to the Jeffersonian/Madisonian idea that the law only exists to prevent one person from harming or violating the rights of another, a position I strongly support.

   The exact same arguments that you are using were used against interracial marriages as well. Those who opposed interracial marriage had centuries of religious and legal tradition on their side. They were in the majority, at least within those states that still had such prohibitions. And given that there was so much religious and legal tradition on their side, the other side was “trying to radically transform the institution of marriage (indeed society itself).” Heck, they even argued that this was a “slippery slope” that would lead to gay marriage, then to polygamy and incest and beastiality, just like the anti-gay marriage advocates argue today. So would you return us to the days where interracial marriage was banned? The arguments are identical to yours on gay marriage. The legal logic is identical. But I doubt you would do so. Because I think you find the arguments you’re making compelling only when they confirm your current prejudices.

   I’ve read your blog before, and I think much of what you say is worthy of consideration. This post, however, is beneath someone of your abilities.

   Thank you for the kind words, and I would return them. You’re obviously a very bright guy, and I enjoy your writings. And I had pretty much the same reaction upon reading your post on the subject.

5. #5 Timothy Sandefur

   April 4, 2004

   Feddie is absolutely wrong about which side bears the burden of proof. The burden is always on those who assert the positive. It is therfore on those who 1) claim that God exists, 2) claim that God is ordering them to persecute, er, I mean, deny them marriage rights (hm, that doesn’t sound too polite, either…how about “preserve traditional marriage.” Better!) and 3) claim that government should prohibit something. It is the conservatives’ burden to prove these things, and particularly 3. They have actually made some lame attempts at proving 3–arguing that marriage is all about procreation and whatnot. None of these arguments was convincing, as the Goodridge Court demonstrated. They have, since then, provided no coherent explanation of what is wrong with that decision, but have simply repeated the arguments which failed to convince the first time, layered over with their assertions that an invisible man in the sky is ordering them to do this. And that is the level of rationality on that side of the argument.

6. #6 NBarnes

   April 4, 2004

   You mean an amendment to the Constitution, as opposed to rule by judicial fiat. I’ll take the former, thanks.

   Moreover, it would seem to me that your side has the burden of proof, not mine. I am not the one trying to radically transform the institution of marriage (indeed society itself).

   I’ve always been amazed at what constitutes ‘judicial fiat’ to social control fetishists. The fact is that judges are what we have in our system to make the decision about which fork to take on decisions like this one. Much as you like to even even the possibility that any ruling other than, ‘Those damn queers can’t get married in my jurisdicition’, the fact is that there are at least two positions in this debate that reasonable people hold. The decision is not so cut and dried that one that you do not agree with constitutes ‘judicial fiat’. Frankly, I find it insulting that my support for equal rights for myself (should I choose a partner of my own sex) and my queer friends is of so little moment and so obviously wrong that the only support for it can come of ‘fiat’.

   As such, judges must, by some mechanism, choose between law the first, ‘No gay marriage’, and law the second, ‘No giving out special favors (like tax benefits, housing benefits, or any of the over 100 formal benefits of marriage) to one group of people without giving them to everybody, unless you have a REALLY good reason.’. As per my first paragraph, reasonable people differ about straight vs. queer being a REALLY good reason. Since there is no Constitutional record of ‘Thou shalt make thy judicial rulings aware of the arbitrary bounds of custom and tradition, even if the law seems to say that the dictates of custom and tradition are illegal’, I’m not sure where you get your legal support. If there was a Traditional Deference admendment, we’d still have anti-miscegenation and Jim Crow on the books, and I think we can agree that that would be bad. But if we agree that anti-miscegenation statues are unconstitutional, by what jurisprudence then are ‘silly queer, marriage is for breeders’ statues not unconstitutional?

   In short, it’s not judicial fiat, it’s entirely and totally in keeping with the tradition of jurisprudence in our country, which says that ‘equal protection’ means ‘equal protection’, not ‘equal protection except when we really don’t like those damn kikes/niggers/queers’.

   You are not just telling me that you disapprove of my lifestyle. Happens. I disapprove of lots of people. You are telling me that my relationships, my loves, are so abhorrent and diseased that there needs to be a Constitutional admendment to make sure I don’t get married. You can marry for money, marry because you accidentally got pregnant after being pressured into sex, get married because you never stopped to think that maybe you shouldn’t, there are a phalanx of bad reasons to get married that we don’t legislate in this country, but getting married to someone you really, truly love, if you really truly love someone of your same sex, that is what gets you out of bed in the morning to write blog posts about how awful it is?

   I’m sorry, I don’t just disagree with you, I find it hard to understand even vaugely where you’re coming from on this one. You have a problem with it, sure, ok, but more of a problem with those sweet septagenarian dykes in San Fran getting hitched after, what, fifty years of living in sin than you have with Britany Spears? Where do you get your priorities?

7. #7 Feddie

   April 4, 2004

   O.k., there’s a lot to address in all of these responses, so I don’t want to simply offer a half-hearted rejoinder due to current time constraints (I am currently finishing up an appellate brief that is due on Monday). As such, I will try to do ASAP (probably on Tuesday). Until then, gents.