Wednesday, November 26, 2014

The Posers at the Gate: Why the protesters in Ferguson are not dangerous and why that should concern us

Officer Darren Wilson has been cleared by a grand jury for shooting Michael Brown and the response of the barbarians in the streets who had no relationship with Michael Brown is to curse the police who had no role in the shooting, vandalize the stores whose owners had nothing to do with the grand jury's verdict, and turn over the cars of people who did not shoot, much less ever even see, Michael Brown.

The narrative here is that these people are upset at the verdict and they are acting out their anger. But most of the reports don't seem to show this. With the exception of the family and a handful of other people, the protesters don't seem angry at all. In fact, one news report described the scene where a store was being looted as having a "festival atmosphere."

Al Sharpton isn't mad. Nor are the other out-of-town rabble-rousers. They're perfectly happy to mug for the cameras and generally attract attention to themselves. This is what they do best.

It isn't anger that has characterized the demonstrations. What has characterized the demonstration is opportunism.

It's enough to give nihilism a bad name.

In fact, to call these people nihilists would unduly dignify the actions of people who don't know or care enough about anything, including Michael Brown's death to do anything that would really rise to the level of positive evil.

They're not nihilists, they're Nietzsche's "Last Men," cosmic couch potatoes who react to these kind of things with a lazy ignorance and lack of any real concern that makes you wonder why they even bothered. They are shallow opportunists posing as the aggrieved and oppressed who are there mainly there to get the "I protested in Ferguson" T-shirt that should be hitting the streets any time now.

Race riots—or the very poor imitation of them we saw in Ferguson—have become the underclass equivalent of fashion statements. It's a chance to get on the news and pretend you're part of something meaningful before you go back to your warm home and check to see if there's something worth eating in the fridge.

In fact, if you really think about it, on a grand scale, how much damage to life and property did they really do? Not much. They started a few fires, turned over a few cars, stole a few mobile phones. But, other than a small handful of store owners whose lives they surely made very much more difficult, they really didn't do much. Not as much, at least, as CNN made out.

CNN. Talk about opportunism. They talked about it as if the whole nation was ablaze, which, of course, it was not. The whole nation couldn't have been ablaze because the whole nation was at home in their comfortable living rooms watching CNN talk about how the whole nation was ablaze on their high definition television screens.

I could live with some serious devastation if it was at least about something. I would think a whole lot more of the protesters if there was some real, authentic, righteous anger behind some really big explosions.

But c'mon. These are people who can't even destroy things with any level of competence.

They did little damage and in doing what little damage they did they risked very little. Had there been any serious threat from police, even the paltry fires they lit and the tawdry looting they did would never have happened.

The wussishness of protesters was matched only by the wussishness of the people who were supposed to lead the effort to keep them under control.

(Wait a minute. Maybe the term "wuss" is now Politically Incorrect. If so, maybe I should use it again.)

In fact, the worst aspect of all this was the reaction of the alleged adults who are supposed to be in charge. We have a President who earlier sent two White House officials to the funeral of the guy who tried to kill a cop and who then, in the minutes after the grand jury's decision, did everything but issue an order to hand out gasoline to protesters.

And then there was the absurd Missouri governor who couldn't even find it within himself to order the National Guard out until the next day.

And while we're on the subject, when are the witnesses who lied to the grand jury about Michael Brown's response to Darren Wilson going to be prosecuted for perjury? Good luck waiting for that. The protesters must truly despise these people.

There is good news and bad news in all this.

The bad news is that we live in a time when the people running our government and our law enforcement have lost their will to deal seriously with public safety threats posed by certain politically protected groups because it might look bad on TV.

The good news is that the politically protected groups, some of whose members pose public safety threats, have lost their restraint in expressing their lack of commitment to anything valuable in our culture because it would look good on TV.

Sunday, November 23, 2014

Rabbi Sacks on marriage as the single most humanising institution in history

Rabbi Lord Jonathan Sacks,  Chief Rabbi of the United Hebrew Congregations of the Commonwealth, the largest body of synagogues in the United Kingdom, spoke last Monday at the Vatican colloquium on the complementarity of man and woman. His speech was titled, ""The Family is the Single Most Humanising Institution in History." Here is an excerpt:
What made the traditional family remarkable, a work of high religious art, is what it brought together: sexual drive, physical desire, friendship, companionship, emotional kinship and love, the begetting of children and their protection and care, their early education and induction into an identity and a history. Seldom has any institution woven together so many different drives and desires, roles and responsibilities. It made sense of the world and gave it a human face, the face of love.  
For a whole variety of reasons, some to do with medical developments like birth control, in vitro fertilisation and other genetic interventions, some to do with moral change like the idea that we are free to do whatever we like so long as it does not harm others, some to do with a transfer of responsibilities from the individual to the state, and other and more profound changes in the culture of the West, almost everything that marriage once brought together has now been split apart. Sex has been divorced from love, love from commitment, marriage from having children, and having children from responsibility for their care.
Read the rest here. It received a standing ovation at the colloquium.

Wednesday, November 19, 2014

Same-Sex Marriage 14th Amendment Fail: Why the Constitution does not require us to abandon traditional marriage, Part I

The first in a series on where the arguments against traditional marriage go wrong

Advocates of same-sex marriage use the 14th Amendment as a sort of incantation by which they think they can magically transform marriage from an inherently complementary relationship between a man and a woman into one which assumes that men and women are interchangeable. And instead of calling them on the bad arguments they use to do this, activist judges have not just looked the other way, but have actively cooperated in passing off the faulty arguments in favor of same-sex marriage as legitimate.

The 14th Amendment argument is probably the most common argument used in favor of same-sex marriage. "To deny gays the right to marry violates the 14th Amendment," they will say, and, largely because most people are not attorneys and don't have the expertise to answer it, the normal person who disagrees doesn't know what to say.

Here is what the section (Section 1) of the 14th Amendment which same-sex marriage advocates say requires that we change the definition of marriage: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

As you can see it clearly states that same-sex marriage is the law of the land ... Oh, uh, wait a second, actually is says nothing about same-sex marriage.

First 14th Amendment Fail:
First, to reasonably assert this in the first place is to assume:
  1. That the plain meaning of the words of the 14th Amendment indicates it established authors of the 14th Amendment meant it to establish a right to same-sex marriage. And, if not, then
  2. That those who ratified it understood it to establish a right to same-sex marriage. And, if not, then
  3. That courts have traditionally interpreted it to apply to same-sex marriage (and even if this last one was true while the first two were false, it would be an judicially-invented right)
In fact, none of these is true. No one ever even conceived the 14th Amendment had anything to do with same-marriage--or with marriage at all--until the past decade when judges started inventing the right in order to comply with the political agenda of gay rights groups.

In addition, it is hard to find any supporter of same-sex marriage even willing to argue any one of these points despite the fact that they are necessary to establish their case.

Tomorrow, we will look at the two, not only false, but preposterous things you would have to believe to say that the due process and equal protection clauses of the 14th Amendment establish a "right" to same-sex marriage.

Tuesday, November 18, 2014

Friday, November 14, 2014

Federal judge denies taking political sides on same-sex marriage while publicly debating the issue

One of the things to which Justice John Heyburn seemed to take umbrage was the implication (I never actually criticized Judge Heyburn directly) that he was taking political sides on the same-sex marriage issues.

No one but us substantively neutral judges here.

But I'm surprised no one noted the irony that he said this in the very act of debating an advocate of traditional marriage. I don't think he wanted it called a debate (something he said several times privately), but that's, in fact, what it was as soon as someone from the other side was invited.

To be fair to Judge Heyburn, he was the originally-invited speaker but he requested someone from the other side to be there and I got the call, which was a gracious act on his part. But as soon as you have that situation, it does bring up some interesting questions.

Thursday, November 13, 2014

The Undemocratic Future of the Marriage Issue

Below are my remarks from the debate with Justice Heyburn at the Women Lawyer's Association of Louisville earlier today.

Introduction
I want to start by thanking the Louisville Association of Women’s Attorneys for sponsoring this discussion. I also want to thank Justice Heyburn for allowing me to participate.

The Undemocratic Future of the Marriage Issue 
My connection with the law here in Kentucky is that it was based on language I had written on a little yellow slip of paper walked into State Sen. Vernie McGaha’s office at the State Capitol in the spring of 2004, language which was drafted, introduced, approved by elected members of both chambers of our state legislature, and placed on the ballot, where it received more “Yes” votes than received “Yes” and “No” votes on any Constitutional amendment before or since.

It is language that is still supported by a majority of Kentuckians even today.

This law has a very democratic past, but it faces a very undemocratic future—a future, of course, that is already upon us.

This law, which simply codified in state law the understanding of everyone, male and female, child and adult, whites and people of color, upper and lower classes, straight and gay, for all of recorded history until about 15 or 20 years ago, will be decided by one unelected judge: United States Supreme Court Justice Anthony Kennedy.

So, as we all loiter about the outer courts, awaiting the pronouncement of the Supreme Court Oracles, I hope you will allow me, as a layman, a few impressionistic observations after witnessing the events of the last year and after having reviewed the various court decisions which have been handed down to us.

What is This Debate About? 
First of all, what is this debate about? As Ryan Anderson has observed and as U.S. Supreme Court Justice Samuel Alito remarked in his dissent in the Windsor decision: The debate over same-sex marriage is a contest between two competing definitions of marriage.

The first understanding is the” traditional” or “conjugal” view. It holds that marriage is “the solemnizing of a comprehensive, exclusive, permanent union that is intrinsically ordered to producing new life, even if it does not always do so.” It is, therefore, an “intrinsically opposite-sex institution.”

The second understanding is the “consensual” view, which holds that marriage is the “solemnizing of mutual commitment—marked by strong emotional attachment and sexual attraction between persons.”

The first view has been the view of everyone, male or female, child or adult, in every social class in every culture in every historical period but our own. There was no one—and that includes gays—who did not universally believe this until about 20 years ago.

What has happened in the courts is that the second view has been assumed—without acknowledgment and without argument. It is not a claim to be analyzed, but an axiom to be postulated. And it is for this reason that they have ruled that laws founded upon the first, traditional view are not just incorrect, but wholly impermissible. As conducted by the courts therefore, there is no real debate about this issue. It was settled before any argument was ever made in a courtroom.

And this is why what is really a conflict of values which would more appropriately be resolved in the normal democratic process is cast as a mere matter of legal procedure to be resolved by applying certain ostensibly neutral principles. This manner of hiding substantive moral judgments in procedural clothing produces curious grammatical constructions such as "substantive due process," a formulation which attempts somewhat to square a circle, since something cannot be both substantive and substantively neutral.

Tradition for Me, but Not for Thee
Second, I think the attempt to hide this substantive assumption in a procedural guise produces other irregularities. One of the things that advocates of traditional marriage are told is that the fact that traditional marriage is traditional and therefore due some kind of deference is irrelevant. Tradition doesn’t count as a sufficient reason for a law.

Now it is an interesting thing to be told that mere tradition is an irrelevant consideration by people who spend half their lives in the monastic practice of blowing the dust off of old volumes in order to see what their predecessors have said (or doing a Lexis search, as the case may be). In fact, most reasoning in most legal decisions is based on legal tradition.

It is what we call “precedent.”

There is no more bedrock assumption in the law. So, in the case of marriage, the question becomes: Why are judges not only allowed, but in many cases beholden to follow tradition, but the wider culture, in making its laws, is not only not beholden to follow tradition, but not allowed to?

Why is tradition a valid justification for judges to rule, but not for the rest of us to legislate?

In the law, precedent is controlling—except when it’s not. When the issue is abortion, we are forced to sit in the political pews in order that we may benefit from long, tiresome sermons about its importance. But when it comes to same-sex marriage, the sermon topic suddenly changes from the importance of precedent to the necessity of something called doctrinal development?

Roe v. Wade (pro-abortion precedent) is controlling; Baker v. Nelson (pro-traditional marriage) is not. Abortion decisions must be upheld because of precedent; marriage decisions must be overturned despite it.

In issues that militate in one direction, the rule is stare decisis—standing on prior decisions; on issue that militate the other, the rule is fugare decisis—fleeing from prior decisions.

Now the interesting thing about this “doctrinal development”—and “doctrinal” is a good word for it— is that it only goes in one direction: It always moves in the direction of one political side and against the other.

“Emanations from penumbra” always seem to grow in the leftward direction.

Morality and Religion
This is related to another assumption, hidden as it is under doctrinal developments and rational basis tests, and substantive due processes, that manifests itself in the anathema, not only on tradition as a rationale for legislation, but also any appeal to morality and religion, which, like tradition, have long been seen as legitimate reasons for a law, as Justice Scalia pointed out his dissent in Lawrence v. Texas.

There is no shortage of laws that impose restrictions based on moral approbation. From incest to prostitution to bestiality, to public nudity--law after law derives its justification from moral authority. In fact, every law—every single solitary one of them—is the imposition in statute and regulation of someone’s morality. Every law requires us to do what we should do or prohibits us from doing what we should not do.

Every single one of them.

The courts that today tell us that a law cannot be justified by moral belief did not question the moral rationale behind the Civil Rights Act, and no one questioned the explicitly religious reasons given for it by Martin Luther King, Jr.

And that’s a good thing.

It is interesting that, while motivations grounded in religion and traditional morality are insufficient to support a law, but they are considered sufficient to prove animus--at least according to Justice Anthony Kennedy in the Windsor decision.

Conservatives Go the Back of the Bus
This low esteem in which the Magisterium of the courts now holds custom, traditional morality, and religion has an interesting and culturally mischievous effect. These things, as it turns out, are the reasons conservatives support or oppose things. Conservatives are Burkean in this sense. Just as individual will, social justice, and liberty of sexual preference are reasons for political liberals to support and oppose what they do, since liberals are largely Hobbesian.

In favoring Hobbes over Burke (once again, without acknowledgment or argument), what the courts have done is to rule out conservative reasons for laws, while allowing liberal reasons for them. It is an inequity of outcome that we lament in other areas of the law.

It creates a rather hard row to hoe for those in our society who do not ascribe to the values of the judicial and secular elite, an elite which now proposes to dictate what voter motivations are permissible and impermissible.

The courts have taken it upon themselves to be the arbiters not just of what does or doesn’t comfort to statute case law, but of what counts as rational. It has deemed that the only reasons anyone could believe that traditional marriage to be a good thing warranting the government’s support are not reasons at all. By definition.

There are many people who, for various reasons, that, on the whole, the best place for children in our society to grow up is in a home with their natural mother and father and that it is good for the government to encourage it. But we are now told that, on the basis of a test they have for rationality, that this belief fails. It not only is not rational, it is not even conceivably rational.

I would submit that any test that finds this common sense belief—one adhered to by roughly half of our population and by most people on this planet—to be not even conceivably rational is itself inconceivably irrational.

Four things that must be believed to make the 14th Amendment Argument
Finally, I know that there are some who would say, well, this is all beside the point. Because there is the 14th Amendment “due process clause” (note the absence of the word “substantive”) and the “equal protection” clause.

If we follow current legal doctrine (which will undoubtedly be developing any moment now) and we go through all the steps of the process of applying these two amendments, what we end up with is four assertions which must be accepted in order to justify recent rulings striking down marriage laws.

The first, as Justice Alito pointed out in his dissent in Windsor, is that same-sex marriage is “deeply rooted in this nation’s history and tradition.” The interesting thing about this is that no judege has seriously tried to argue for this belief even though courts have found that it is a sine qua non for any newly-minted "fundamental right." It is fairly clear that it is historically untenable.

The second is that same-sex marriage is “implicit in the concept of ordered liberty.” This is another requirement for finding that an unenumerated right is fundamental that same-sex advocates never even attempt to argue for, largely because it is clearly untrue.

The third is that homosexuality is an immutable characteristic. This is believe largely because of the frequency with which it is repeated, rather than by evidence and it is interesting that it is controversial even among gay scholars, most of whom are contructivists who don't believe anything is immutable. But perhaps the best thing to say for the moment is what Stanley Fish has said which is that "feng shui is a rock hard science compared to judges who try to practice psychology.”

The fourth is that gays are “politically powerless.” It is hard to know exactly how to respond to a judge who claims this beyond suggesting that he ought to get out more.

Again, one must believe all of these things in order for the argument that same-sex marriage is derivable from the 14th amendment.

Conclusion
Although I question the reasoning that has been used in these decisions, I don’t question the motives of judges who have made them. We all have our views of what is right and wrong. But to short circuit the process by which we resolve these issues by allowing one small group of elites the right to make these decisions for us is not the answer.

It is nice that we are all here today discussing this issue, but the fact is that nothing we say here today and nothing that has been said even by judges who have ruled on this issue will have as much influence on the outcome of this issue as what Anthony Kennedy has for breakfast on the morning he dons his Supreme Court robes and goes to write his decision (he is the swing vote on the court).

My favorite statement concerning the role of judges in issues like this is found in Alan Paton’s great book about Apartheid in South Africa: Cry, The Beloved Country. There, in a country ravaged by far worse problems than those we think so important in America today, he talks of the respect both Blacks and Whites have for South African judges--judges who do not make law, but only interpret it.

In the great scene in which the judge announces his decision near the end of the book, he says,
[I]t is one of the most monumental achievements of this defective society that it has made a law, and has set judges to administer it, and has freed those judges from any obligation whatsoever but to administer the law. But a judge may not trifle with the Law because the society is defective. If the law is the law of a society that some feel to be unjust, it is the law and the society that must be changed … And the fact that he is left free to administer it must be counted as righteousness in a society that may in other respects not be righteous … I am only pointing out that Judge cannot, must not, dare not allow the existing defects of society to influence to do anything but administer the law.
Thank you.

Wednesday, November 12, 2014

My debate tomorrow with Federal Justice John G. Heyburn in Louisville

Today's Family Foundation press release:

FOR IMMEDIATE RELEASE

LEXINGTON, KY--Family Foundation senior policy analyst Martin Cothran will participate in a discussion with the federal judge whose two decisions striking down Kentucky's Marriage Protection Amendment were reversed last week by the 6th Circuit Appeals Court.

The program featuring Cothran and Federal Justice John G. Heyburn will be a part of the Woman Lawyer's Association of Louisville Annual Luncheon from 11:00 a.m. to 1:00 p.m. at the Ice House at 226 East Washington Street in Louisville.

###

Friday, November 07, 2014

Justice Jeffrey Sutton demolishes arguments against traditional marriage laws

Yesterday's 6th Circuit Appeals Court decision upholding Kentucky's Marriage Amendment was a strongly-worded repudiation not only of the district court decisions it was considering (including Judge Heyburn's two Kentucky rulings), but also of 7th Circuit Court Justice Richard Posner.

Despite its fundamentally question-begging reason, Posner's 7th Circuit opinion was hailed by same-sex marriage advocates as the last word on the subject. It's dramatic rhetoric condemning traditional marriage advocates and all their works was devastating. It's arguments unanswerable.

Well, yesterday, Judge Jeffrey Sutton answered Posner, and in magnificent fashion.

In fact, Sutton's opinion was a point-by-point wrecking ball to each of Posner's arguments--arguments Posner took from plaintiffs in the lower courts and their judicial allies and magnified for his own rhetorical (and political) purposes.

I'm going to be posting various parts of the decision over the next week. Here's the first excerpt, having to do with the general questions of how the issue of same-sex marriage should be resolved:
Of all the ways to resolve this question, one option is not available: a poll of the three judges on this panel, or for that matter all federal judges, about whether gay marriage is a good idea. Our judicial commissions did not come with such a sweeping grant of authority, one that would allow just three of us—just two of us in truth—to make such a vital policy call for the thirty-two million citizens who live within the four States of the Sixth Circuit: Kentucky, Michigan, Ohio, and Tennessee. 
Wow. Judicial humility. Imagine that. 

Place this bit of text against the arrogant sermonizing coming from other federal and state judges who think they are wiser than the rest of us, who apparently are not capable of making our own laws.

More to come.

Thursday, November 06, 2014

6th Circuit Court turns back attempt to overturn Kentucky's marriage law

The Sixth Circuit Court of Appeals reversed the Bourke and Love decisions which had overturned Kentucky's Marriage Amendment. Here is Justice Sutton, getting to the crux of the matter:
Not one of the plaintiffs’ theories, however, makes the case for constitutionalizing the definition of marriage and for removing the issue from the place it has been since the founding: in the hands of state voters.
This is a victory for republican democracy and a defeat for ideologues who want to use the courts as their own private political enforcement agency.

Tuesday, November 04, 2014

Why some people should NOT vote

I was an editorials editor on my daily college newspaper at the University of California, Santa Barbara in the 1980s, and one of my daily jobs was to write one of the two staff editorials every day and edit the other. Among my least fond memories of that experiences was having, before every election, to write the obligatory editorial on why everyone should vote.

These platitude-laden editorials always had a sort of boilerplate feel. You just sat there, writing, feeling like someone in whatever department it was in Orwell's 1984 that churned out the formula lyrics for songs intended for the proles.

In fact, I have finally decided that, not only were these editorials meaningless, they were wholly mistaken in their advice.

I thought about all of this meaningless "get out the vote" rhetoric that I used to write and that we we now hear every election as I listened to an interview on NPR with a young woman in Colorado who NPR has apparently been checking in with over the last week or so. The young lady in question harbors all of the clichéd political attitudes (I say "attitudes" rather than "beliefs" because they are not substantive enough to count as the latter) popular today.

And because her attitudes are all essentially clichés, she is still deciding--as of this morning--who to vote for. She was voting for the democratic Senate candidate because he will stand up for her reproductive rights. But now she has been talking about relatives of hers from the rural part of the state. And so it goes, back and forth, like a shuttlecock in a bad badminton game.

The girl clearly has no clue what she believes, has no central guiding principles about culture or society, and has trouble articulating herself without the obligatory "likes" and "you knows."

And then I was watching TV last night and they were interviewing people on the street and asking them basic questions about who their senators and representatives are. Of course, most of the respondents were completely at a loss to say who their elected lawmakers were or even the most basic things about the current civic state of the country.

So I finally just said to myself: "There are some people who should not vote."

In fact, all people like this young lady or these people in the street who don't know basic things about our society should be told, as George F. Will said a few years ago, "Keep your ignorance to yourself." There are some people who quite simply should avoid voting altogether.

If you don't have a clue who is on the ballot, if you have listened to all the rhetoric from both sides and still can't make a determination, if you are morally rudderless and intellectually empty, STAY HOME. DO NOT VOTE.

If you are one of these people, then simply spare the rest of us and DO NOT GO TO THE POLLS.

I know this goes against all the hackneyed rhetoric everyone is hearing today, but its something that needs to be said. It's a hard truth, and some people don't want to hear it in our mindlessly egalitarian society, but it's true.

Ignorance is not a civic virtue, nor is lack of basic thinking skills, nor is an impoverishment of moral vision. They are bad things and those who suffer from them should not perpetrate them on the rest of us.

But, of course, none of the people who suffer from these things will follow this advice, precisely because they suffer from these things. It would take a person with these virtues to notice that they did not have them, and so no one who lacks them will know that they do.

This is the sorry condition of our society: those who lack virtue are precisely the people who will never realize that they do.

So we will all watch the results of the polls tonight knowing that many, perhaps most of those who are determining our future are completely unqualified to do it. . But it will be the decision. And so there you are.

Have a happy day.

Results of the election now official

Debbie Wasserman-Schulz
The results of tomorrow's election are now official: Debbie Wasserman-Schulz has given her characterization of the election and as we all know she is congenitally incapable of telling the truth. She has said "the Democrats will hold the Senate," so we therefore know that they won't.

Political prognostication is so easy: Just listen to what Wasserman-Schulz says, and conclude the opposite!