When Liberty Kisses Justice: Equality

The Iowa Supreme Court set the cat amongst the pigeons with their ruling on whether or not the state can ban gay marriage, based on the state’s constitution. Their decision, I believe, is the correct one. Iowa’s state constitution has an equal protection clause. One of the principles of American justice, a principle that religion-besotted conservatives have intentionally swept under the rug, is that legislation is not the supreme law of the land. Above legislation are the constitutions of the various states. It ought to be that way at the federal level as well, but too often isn’t, hence runaway big government.

The god-botherers out there scream when a court rules as this one did. They exhibit their own ignorance by bleating that the justices are legislating from the bench. But what these justices are required to do is judge whether or not legislative law is consistent with, or in violation of, constitutional law. That is their job! They are not usurping powers but judiciously engaging in their primary job.

Members of God’s Own Party (GOP) in Iowa pushed through legislation that explicitly banned gays from having the same marriage rights as straights. The Iowa constitution promises equality of rights before the law. There are exceptions to the concept of equality of rights (more than I think acceptable). With the legislation saying one thing, and the constitution promising another, the Supreme Court is then brought in to resolve the conflict. This means they have to decide, based on the evidence presented to them, whether denying gay couples equal protection qualifies as a legitimate exception or not.

What the Iowa court did, in this case, was issue a very conservative ruling. They upheld constitutional law, and some of the best constitutional law, that Americans have. The radicals in the courtroom were the plethora of religiously-inspired special interest groups demanding that constitutional principles be ignored because they imagine that some supernatural being has demanded that one class of people be treated badly. The Justices were respecting the law, not making law. They said:

The Iowa Constitution is the cornerstone of governing in Iowa. Like the United States Constitution, the Iowa Constitution creates a remarkable blueprint for government. It establishes three separate, but equal, branches of government and delineates the limited roles and powers of each branch. See Iowa Const. art. III, § 1 (“The powers of the government of Iowa shall be divided into three separate departments—the legislative, the executive, and the judicial: and no person charged with the exercise of powers properly belonging to one of these departments shall exercise any function appertaining to either of the others, except in cases hereinafter expressly directed or permitted.”). Among other basic principles essential to our form of government, the constitution defines certain individual rights upon which the government may not infringe. See Iowa Const. art. I (“Bill of Rights”). Equal protection of the law is one of the guaranteed rights. See Iowa Const. art. I, § 6. All these rights and principles are declared and undeniably accepted as the supreme law of this state, against which no contrary law can stand. See Iowa Const. art. XII, § 1 (“This constitution shall be the supreme law of the state, and any law inconsistent therewith, shall be void.”).

The ruling noted that: “This court, consistent with its role to interpret the law and resolve disputes, now has the responsibility to determine if the law enacted by the legislative branch and enforced by the executive branch violates Iowa's Constitution.” Conservatives, who are wailing in distress over the court’s action, ought to remember that the prime cause of over-reaching government today is the result of Courts not checking legislators and executives when their actions violate Constitutional guarantees.

The justices also noted that public opinion matters not one bit. “A statute inconsistent with the Iowa Constitution must be declared void, even though it may be supported by strong and deep-seated traditional beliefs and popular opinion.” Jefferson addressed this when he said: “What is true of every member of the society, individually, is true of them all collectively; since the rights of the whole can be no more than the sum of the rights of the individuals.” Popular prejudice, even if widespread, in itself, is not sufficient cause for making a minority less than equal. The Iowa justices wrote that “the very purpose of limiting the power of the elected branches of government by constitutional provisions like the Equal Protection Clause is [according to Justice Robert Jackson] ‘to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.’”

The idea that law should reflect popular viewpoints, which is implicit in the conservative view, and explicit in many cases, is not even a conservative viewpoint. What today’s conservatives are promoting is a Left-populist view held by some of the more Left-wing justices of the past. During the Progressive Era, the political Left was stymied when they wished to push through legislation that inhibited property rights, freedom of trade, freedom of contract, and such similar “economic” issues. Such laws, while popular with the public, violated various constitutional provisions as they had been historically interpreted. This became most apparent in the early days of the New Deal, where Roosevelt’s anger with the Court overturning popular legislation reached a crescendo with FDR threatening to push through a change on the number of justices on the bench so he could pack the court with fellow “progressives.”

Oliver Wendell Holmes, one of the Left-leaning justices pushed a new theory of Constitutional interpretation. He said that Constitutional provisions should be interpreted in light of “the felt necessities of the times, the prevalent moral and political theories, intuitions of public policy, avowed and unconscious, even the prejudices which judges share with their fellow men.” He said, “What proximate test of excellence can be found except correspondence with the actual equilibrium of force in the community—that is, conformity to the wishes of the dominant power? Of course, such conformity may lead to destruction, and it is desirable that the dominant power should be wise. But wise or not, the proximate test of a good government is that the dominant power has its way.”

Holmes explicitly stated that constitutional principles of the Founders should be ignored. He claimed: “Everyone instinctively recognizes that in these days the justification of a law for us cannot be found in the fact that our fathers always have followed it. It must be found in some help which the law brings toward reaching a social end which the governing power of the community has made up its mind that it wants.” Conservatives have adopted this left-wing view rather explicitly, at least when it comes to the equality of rights of homosexuals. Mention the gay issue and conservatives, who cling to constitutional principles on property and economics, suddenly become raving Progressives demanding that the rights of the one be subjected to the approval of the majority.

But what of the claim that the Founders did not explicitly mention the legal equality of homosexuals when they designed our Constitutional principles? Clearly that is true. After all it was a bit over two centuries ago. What the Founders intended to do was set out some basic principles; principles which they knew were not being applied consistently, across the board. For instance, while some Founders were quite opposed to the issue of slavery, they did not write a Constitution explicitly forbidding it. Such a Constitution could not be ratified, given the prejudices of the Southern states on the matter.

The Founders were aware that the expansion of liberty, and equality before the law, was a long-term project, perhaps an unending one. Future generations would each fight their own battles for the extension of these libertarian principles. At no point did the Founders attempt to enumerate all the rights held by the individual. As James Wilson said, at the time, “Who would be bold enough to undertake to enumerate all the rights of the people?” The Ninth Amendment quite explicitly acknowledges that such an enumeration is not possible and that the failure to list specific rights in the Bill of Rights does not mean the right does not exist. What the Founders gave us was a list of precise, enumerated powers of government and broad, unspecified concepts of individual rights.

Each generation faces new questions about rights not faced by previous generations. The Founders did not believe that their list of rights was exhaustive. So they did not try to enumerate such rights. They said they were offering future generations the broad principles with which they should work when facing new controversies about individual liberty. Jefferson’s said that the “most sacred” duty of government is “to do equal and impartial justice to all its citizens.” That principle was enshrined in the Iowa Constitution, as it was in most state constitutions. Jefferson said our principles of government “secure to all… citizens a perfect equality of rights.”

But today, conservatives are leading a stampede to undermine the concept of equality of rights before the law. They are arguing that their religious sentiments and imaginations require the law to explicitly embrace an inequality of rights. This is precisely what Prop 8 did in California and what many other such “constitutional amendments” have been intended to do. They have radically rewritten a basic constitutional principle, that of equality of rights, and substituted for it one that demands inequality of rights. Such a revolutionary change to a founding principle is hardly conservative in any sense of the word. It is a shockingly revolutionary attempt to overturn the founding principles of the Republic.

The classical liberal views of the Founders were not static. Liberalism itself is not static, but dynamic. It is not that the foundational principles change, but that they are applied to new situations in new times. Even the Founders were captives of their own time and culture, as far-seeing as many of them were. The application of constitutional liberal principles to African-Americans was simply not something that the political culture of their day could accept. But those principles were eventually accepted, albeit it after much hardship, debate and public outrage, somewhat similar to the sort of reaction we see today as these principles are slowly being applied to gay people as well.

Hayek said that true liberalism “wants to go elsewhere, not to stand still.” By this, he meant that liberals accept change when that change is consistent with foundational principles. He warned, “one of the fundamental traits of the conservative attitude is fear of change, a timid distrust of the new, as such, while the liberal position is based on courage and confidence of the preparedness to let change run its course even if we cannot predict where it will lead.” Hayek said that conservatives are not afraid of state power at all and thus is unconcerned “with the problems of how the powers of government should be limited” but are worried about “who wields them.” He warned that the conservative “like the socialist” “regards himself as entitled to force the value he holds on other people.”

Lord Samuel Brittan once argued that: “Many of the classical ideas of nineteenth-century liberalism [i.e. classical liberalism] did not come on the statute books until the 1960s. The battle is still far from won, as can be seen from the sentences still passed on ‘obscene publications’ or the hysterical and vindictive attitude adopted by so many authority figures towards the problem of drugs.”

The classical liberalism of the Founders is always going to move us into new territory. And when it does, there will always be conservative forces, fearful of change, finding excuses to cling to previously held, but erroneous, conclusions. The Iowa court said that their responsibility “is to protect constitutional rights of individuals from legislative enactments that have denied those rights, even when the rights have not yet been broadly accepted, were at one time unimagined or challenge a deeply ingrained practice or law viewed to be impervious to the passage of time.” They wrote:

The framers of the Iowa Constitution knew, as did the drafters of the United States Constitution, that “times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress,” and as our constitution “endures, persons in every generation can invoke its principles in their own search for greater freedom” and equality

One of the great things about liberalism, properly understood, is that it doesn’t ask us to cling to the conclusions of the past, just the principles. Those principles embrace a free society, based on individual rights and one that respects the equality of rights before the law. The justices in Iowa did not overturn those principles at all. They unanimously embraced them. And for that they should be applauded.

[Note: this post only covers basic principles as I see them in regards to this case. I urge people to read the entire decision for themselves. Much of the decision discusses why the justices rejected claims that homosexuals, as a class, ought to be denied marriage rights.]

If it doesn't sell in Kansas it won't sell anywhere.

The old and demented god-monger, Fred Phelps, and his ragtag band of family members, decided to picket the Shawnee Mission East High School in Prarie Village, Kansas. Fred is like the last Nazi standing, still spitting venom about the evil Jews taking over the world. Of course the “Jews” in Fred Phelps' imagination are gay people.

What got Funky Fred into a dither was that the senior class of the high school voted for Matthew Pope as their homecoming king. And they did so knowing full well that Pope is a gay student. They didn’t care and felt he deserved the honor. That was last year but Funky Fred is pretty slow -- in every way imagineable. Pope, now a university student, returned to the high school today to stand with his former classmates.

Fred managed to rally about a dozen of his fanatical followers, several of them children dragged along by their insane parents. But word of Fred’s picket line spread and 450 people, largely made of students from the high school, held a counter-demonstration.

You know the bigots are losing a battle when they are having to fight for their demented world view in places like Prarie Village, Kansas, a suburb south of Kansas City. This is what the pundits call “Middle America”. This is as mainstream as you can get. And simply put: people are getting tired of the religious-inspired bigotry.

Several of the students took up donations for AIDS research and one student just reported: "It was a huge success and we raised thousands of dollars for AIDS research, there were many graduates, parents, students and kids from other schools there to support us." Aanother student reported: "Someone told me today, 'I'll never feel scared to come to school anymore because I'm gay. Now I know that I've got the whole school behind my back."

Here is a short clip of part of the counter-demostration as recorded by one of the students at the school.



Since we are the topic here is a video that was put together regarding the Prop 8 case in the California Supreme Court. If you remember the heavily Mormon-financed campaign has filed suit in the Supreme Court to force 18,000 couples to divorce against their will -- literally. In the name of "family values" they want to separate 18,000 families. It is madness that can only come when you think you speak for some deity.

"Fidelity": Don't Divorce... from Courage Campaign on Vimeo.

Mormons say no to gay equality again

Because of the prominent role played by the Mormon Church is stripping California’s same-sex couples of their marriages the issue of same-sex relationships has heated up in Utah, home for the cult. The Salt Lake Tribune has polled the public on the matter of recognizing the equal rights of gay people and what it found shows a profound difference between Utahans in general and Mormons.

Without exceptions the Mormons are far less tolerant and far more likely to demand that gays be treated as second class citizens.

A plurality of non-Mormons in Utah support a measure to allow same-sex couples to enter into civil unions. In the general public this breaks down to 48% in favor and 43% opposed. But when it comes to Mormons only 12% will even allow gay couples a civil union, let alone marriage equality.

A majority of non-Mormons say that gay couples should be allowed to adopt or be foster parents, only 30% oppose equality in this matter. Among Mormons 67% want gays at the back of the adoption bus -- actually they think they should be kicked off the bus.

So what about issues like allowing visitation rights in the hospital for gay couples? Half of the Mormons surveyed said that the same-sex partner of someone in hospital should not be allowed to visit. This is astounding. But when asked about issues like the right to inherit from their partner, or visit them in hospital, half the Mormons would deny even those rights to gay couples. Only about a quarter of the non-Mormons felt the same way.

One Mormon told the pollsters expressed the views of many Mormons: “I don’t believe they should have any rights at all,” said Maureen Johnson of South Jordan, Utah. Indeed, stripping people of their rights, in order to conform with the wacky theology of Mormonism does seem to be high on the Mormon agenda. Of course, even the Mormons have progressed. At one time in history they slit the throats of sinners now they just treat them like dirt. More amazingly the Mormons then whine when people protest this treatment.

Why the Prop 8 battle is far from over.

If the Mormon Church thinks the battle over Prop 8 has ended they are sadly mistaken. Let us consider what is happening and likely to happen.

First, the Mormon cult has made a huge mistake in regards to their public relations. American culture is divided between rational secularists and faith-driven fundamentalists. That is the main divide with many Christians falling into the rational secular category by practice, even if not by self-identification.

The problem for the Mormons is that they don’t fall into either group. They can be faith-driven fundamentalists, but of the Mormon kind,. And Mormonism is well outside traditional Christian thinking. They were trying to impress antigay Christians by matching them in prejudice. But that doesn’t remove the fact that most fundamentalists know that Mormons is not Christian in the theological or historical sense of the word. Mormons want to convince everyone they are because the use similar words but naming a pig Fido doesn’t make it a dog.

So while they might impress fundamentalists with their antigay bigotry they won’t win them over. And the rest of the country will be even less likely to look favorably on this weird sect and their polytheism, secret Temple endowments and celestial polygamous marriages. In other words, the one group they sought to impress will continue hating them and the secularists will resent their intrusive attempts to create a theocratic legal system.

Mormons also played this badly. They wanted the Christianists to know they were funding the campaign while they wanted to pretend to the secularists that the Church wasn’t involved. This is typical Mormon duplicity and deception. The Church had an expensive, but off-the-books, campaign to get their members to fund Prop 8. But they told their cult members to donate directly to Prop 8 so the funds didn’t go directly through Church hands. Then, when they are asked about their campaign to strip gay people of rights, the Mormon leadership feigns innocence and uses as proof, the fact that they didn’t contribute directly to the campaign.

But opponents know who was actually the funders of Prop 8. They know the Mormon leadership told members to fund the campaign and provide manpower. They know that church meetings were held where this was done. So today, angry people gathered to protest Prop 8 and they chose the Mormon Temple in Los Angeles as the target for their protests. So the secularists are pissed off at the Mormons and the fundamentalists hate them. All the Mormons have done is piss off a lot of people without changing the the minds of the Religious Right which accurately perceives them as being a strange cult. The Mormon leaders stupidly put the church in a lose-lose situation.

In addition, this “victory” for the antigay Right is, at best, temporary. This issue won’t go away. If they honestly believe that gay Americans are going to become resigned to second class citizenship they are either very mistaken or very stupid. I’d bet on the latter before I would the former. They may think this is the gay agenda but they don’t know the facts, again.

The gay marriage issue did not arise from what is called the “gay leadership”. The gay rights groups did not set this agenda. They didn’t want it. They were worried about bad legislation like hate crime laws, which they naively want to pass. Marriage was not a priority to them. It was gay couples, in long-term relationships, living with the problems of second class status who pushed the issue. The gay leadership and gay organizations only jumped on the issue after they realized it wasn’t going to go away. This was one of those issues where gay “leaders” saw the crowd moving in one direction, ran to the front of the parade, and then pretended to be leading it.

More importantly the issue is moving in the right direction. The original measure to ban gay marriage in California passed quite easily. Not this time. They barely managed to secure a majority of voters. And it may not be possible to do it again. There were numerous things that had to be done this time just to get a bare majority.

First, they benefited because of the high Black voter turnout. Black voters are even more bigoted than fundamentalists. A higher percentage of Christians voted no on Prop 8 than Africa-Americans. The reality, which the political Left dare not admit, is that African-Americans are a deeply bigoted lot especially when it comes to the rights of gay people. But that huge turnout was because Blacks saw their first chance to elect a “black man” as president. I put that in quotes merely because Mr. Obama is as black as he is white when it comes to his race. If the Prop 8 supporters think they will have that happen each time this comes up again they are wrong.

The question is who has the incentives to keep up the campaign, year after year. While hate can be inspirational to some it is not sustainable. I predict that religious groups will give up their efforts long before their victims do.

And these groups already know the trends are against them. One reason for their desperate measures to enshrine bigotry in state constitutions is because they perceive the tide moving against them. If you look at the vote in California, and compare it to the last vote against marriage equality there, you will see that support for marriage apartheid has subsided substantially in a very short period of time.

Without the Mormon church pushing members to pour millions of dollars into the campaign it is unlikely they could have pulled off their proposition. Last time they won easily without spending much money. Last time they didn’t have to resort to the horrific, dishonest television advertising that they used to push their cause this time. In other words, they operated under unusual favorable circumstances (the high turn out of antigay African-American voters), had to spend far more money than before, and had to resort to blatant dishonest on the air. With all of that they managed a narrow victory.

And there is one final issue which the antigay crowd will have to deal with: whether or not the initiative itself is legal. As I understand it Californians may make small changes to the Constitution by majority vote. But, if the change is substantial, then the requirements are different.

The California State Supreme Court ruled that state laws treated gay couples unequally and that the Constitution specifically guarantees equality before the law. So what happens to that Constitutional guarantee if another amendment specifically denies it? Can a Constitution contradict itself and how is that contradiction resolved?

Opponents are arguing that the new amendment effectively repeals the equal protection clause and thus changes the structure of the Constitution itself. Those sort of changes are reserved to the legislature -- which has twice approved equal marriage laws. At best the Mormons have only delayed the inevitable. And long-term I suggest they will regret their role in this assault the rights of others. Outside the utter moral hypocrisy of the Catholic Church, if there is one church that can’t stand much scrutiny, it is the Church of Jesus Christ of Latter-Day Saints.

Addendum: Actor T.R. Knight, of Grey's Anatomy, was a poll worker fighting Proposition 8. He spent the day at polls in Southern California and describes the vitriolic hatred that was exhibited toward him, and other opponents, by Prop 8 supporters. "Every single supporter of Prop. 8 was so filled with anger and bile as they voiced their "support" to us, with the exception of one older gentleman, who engaged us in a very civil conversation. One person in over 13 hours." Knight wrote: "I hope I can muster the patience and keep my anger focused so I can continue to fight. Fight clean. Fight with just the truth. And never let myself spew the kind of hate I encountered on that Tuesday in November as we peacefully fought for our civil rights."