February 24, 2004

Don't Mess With What You Don't Understand

John Hawkins of Right Wing News and I would agree on many things. But not, apparently, on gay marriage - and in particular on the idea of a "defense of marriage" amendment to the Constitution. Hawkins thinks it's a good idea; and after all, the public supports it. While I'm sure that Mr. Hawkins would disapprove of a number of things the public basically supports (including abortion pretty much on demand) being written into the Constitution, I would actually like to approach this in a more fundamental way.

The purpose of the Constitution is to define the nature and limits of government, in particular, of the Federal government. There is exactly one instance in the Constitution of a prohibition on individuals: the prohibition on ownership of slaves. There is exactly one individual crime defined in the Constitution: treason (and that is defined specifically to limit the power of government to call any actions against the current government "treason"). The Constitution is intended to create an environment in which society can evolve as necessary, renewing itself and reinventing itself according to the best judgement of its members. The Constitution is not and never was - and if we are wise never will be - used to define the shape and parameters of society.

I oppose a "defense of marriage" amendment to the Constitution because I oppose any and all attempts to remove contentious issues from the normal political realm and place them beyond reasonable chance of representative change. (For the same reason, I think Roe v. Wade was wrongly decided, despite my general agreement with the outcome.)

Posted by Jeff at February 24, 2004 09:51 PM | Link Cosmos
Comments

What angers me is the total disregard of the rule of law. In San Francisco, the mayor is flouting the law. I think he's perfectly justified in suing the state to challenge the constituionality of California law, but he has crossed the line in granting faux marriages in the meantime. That California courts have failed to order them halted until the lawsuit is resolved is outrageous. The claim that these unions pose no irreparable harm so we'll let them stand is perplexing. The fact is that as of right now gay marriage is against the law in California, and the burden of proof should be on the proponents of reversing that law. Until the law is changed or struck down, the courts should order it's enforcement.

In Mass. it's frustrating in that the court is basically writing the law. Ok, they all of a sudden found a right that they overlooked before; I'll not question that. But demanding the legislature write a law rectifying the situation and then telling them it can't be some compromise but must explicity allow gay marriage is exceeding their jurisdiction. Their job is not to tell the legislature what the law must allow, only to judge any such law as is passed.

So my major question is, that with gay marriage illegal everywhere in the nation, why is it that it's proponents are not the ones having to amend the Constitution?

Not that I really care anymore. The rule of law has become an absolute joke as of late. Why would amending the Constitution help? Mayor Newsom could ignore the Constitution just as easily as he ignores state statutes. I don't see a desire to hand down any repercussions for violating the law right now. We've come to a point where if someone doesn't like the law, they simply ignore it. Don't like a line of questioning in a deposition - simply decide for yourself it's irrelevant and commit perjury. Your party's candidate going to lose an election - ignore all the laws governing a candidates placement on the ballot and find a ideologically sympathetic court to let you replace him. The Constitution prevents descrimination on race and religion - who cares, we feel like preserving systems that are doing just that. The Constitution prevents government regulation of speech, particularly political speech - who cares, we are going to explicitly prevent certain politcal speech within an arbitrary number of days before an election.

So who gives a RAT"S ASS what the laws are!?! They apparently are diregardable at the whim of those in power, including our highest court and greatest arbiter of the law.

Posted by: Brian on February 26, 2004 04:38 PM

Good post. The distinction you make is very important and needs to be more widely understood: the purpose of the Constitution is to define government not society.

Posted by: phil on February 26, 2004 07:51 PM

Well, Brian, if the law doesn't FEEL right ...

This is our want-it-right-now society. We don't really have any concept that laws, rules and procedures mean anything.

Posted by: Stephanie on March 4, 2004 08:42 AM
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