The Backlash from Judicial Activism

Our friends on the other side of the SCMA issue have expressed their views with vigor and passion, as committed believers in any cause should. But we have to ask whether or not their desire to put the decision on the legality of same-sex marriage in the hands of the Judiciary is a wise move.   James Pinkerton, in  Newsday, offers some perspective on judicial intervention and voter backlash in other states.

Pinkerton notes: …"A consistent political pattern has emerged over the past four decades:
The left wins in the courtroom, and the Democrats then lose at the
ballot box….

…Last Wednesday the Garden State’s highest court ruled that denying
homosexual couples the same rights as heterosexual couples "bears no
substantial relationship to a legitimate governmental purpose." No
legitimate governmental purpose? A stern charge to make – that the
state government has failed to do its duty over the past 219 years.

It’s more accurate to say that a 4-3 majority on the court ordered the
legislature to do its bidding. There’s a phrase for that: "judicial
tyranny."

It must be said here that a solid argument can be
made that committed same-sex couples deserve societal recognition. Many
societies, across history, have made some sort of allowance for gay and
lesbian relationships. Indeed, the idea that different people, in
different places, might come up with different answers to the
gay-relationship issue fits in with the nuanced worldview of Edmund
Burke, patron saint of modern conservatism. In 1790, Burke wrote, "The
nature of man is intricate; the objects of society are of the greatest
possible complexity; and therefore no simple disposition of direction
of power can be suitable." In other words, one-size-fits-all solutions
aren’t advisable.

So with an appropriate Burkean perspective,
conservatives shouldn’t get too riled up if local jurisdictions – such
as, say, the City of San Francisco – decide to carve out space for gay
and lesbian couples.

But that’s not what happened in New
Jersey. In that state of nearly 9 million people, liberal-activist
litigators went straight to the courts; they calculated, accurately,
that they would get their way with elite judges. The irony of this case
is that polls show that most New Jerseyans support civil unions, if not
gay marriage. Which is to say, if gay leaders had been willing to work
through the small-"d" democratic process, they might well have achieved
at least some of their goals.

But instead, Lambda Legal went
straight to the courts. And so the familiar pattern is likely to
re-emerge: Liberals win with judges in the short term, then lose with
voters in the long term. It’s happened before. In Vermont, for example,
the State Legislature – under pressure from the state Supreme Court -
enacted legislation providing for civil unions, which the Democratic
governor then, Howard Dean, signed into law in 2000. Whereupon the
backlash set in: That November, Republicans captured the governorship
and one house of the legislature.

That’s the predictable
pattern: Courts put gay marriage on the agenda, and then voters do
their best to take it off. Over the past six years, 21 states have
voted on the question of gay marriage, and the Republican-allied right
has won all 21 of those referenda, even in such "liberal" states as
California, Hawaii and Oregon.

At the same time, Democratic
politicians have lost. In Ohio, a referendum banning gay marriage was
on the ballot in November 2004; it passed by 1.2 million votes. That
same day, in the Buckeye State’s presidential balloting, George W. Bush
squeaked past John Kerry by just 120,000 votes. Anti-gay-marriage
coattails almost surely carried Bush to victory in Ohio and thus back
into the White House.

In fact, lefty litigation victories over
the past 40 years – most notably the U.S. Supreme Court’s 1973 Roe v.
Wade abortion decision – have cheered liberals and divided Democrats.
Which helps to explain why Republicans have won seven of the past 10
presidential elections. Many socially conservative Democrats have
abandoned a party that clearly prefers liberal lawyers to citizens
holding "reactionary" social views.

And now these ex-Democrats are being fired up, once again, by judges acting as legislators."

Defense of Marriage Act (The Federal Version)

We have had a lively exchange of comments (thanks to all for their input) on the Agricoli decision to vote in favor of the South Carolina Marriage Amendment. I hope the discussion is not over.  As a sidebar to the local issue, Dick Morris, late of the Clinton White House, pens a column on Hillary Clinton’s position on Gay Marriage rights, found here.

A flavor: 

Her statement dismissed her support of her husband’s Defense of Marriage Act as "a strategic decision to help derail a constitutional amendment that would have banned gay marriage."

Nonsense. I was in the room at the White House strategy meeting and was sitting next to the president when he decided to promote and sign the bill. Nobody was even talking about a constitutional amendment back then – 1995-96 – and no one in the meeting so much as mentioned the possibility. His decision to sign the bill closely followed my announcement of polling data that suggested overwhelming support for the legislation. His announcement to his staff and advisers that he would sign the bill was, indeed, a strategic decision, but one that related to his re-election prospects rather than to any push for a constitutional amendment.

The bill was passed by Congress because of fears that legislation in Vermont, signed by Gov. Howard Dean, allowing same-sex "civil unions" might force other states to recognize unions formed under Vermont law. The worry was that same sex couples could force the other 49 states to recognize a marital relationship allowed under Vermont law by invoking the U.S. Constitution’s full-faith-and-credit clause, which requires that states recognize the actions of their fellow states. To forestall this possibility, the Defense of Marriage Act tried to prohibit courts from making states recognize gay marriages or civil unions allowed by another state.

This issue is being used by politicians to curry votes, and not to establish principle, which is yet another reason to let the people vote.

UPDATE: From The Corner comes a clarification of Morris’s column:

Dick Morris [Ramesh Ponnuru]

catches Hillary Clinton engaging in some revisionism about her position on same-sex marriage, but doesn’t get the timeline right himself. According to Morris, she claims that she supported her husband’s signing of the Defense of Marriage Act only to stave off a constitutional amendment against same-sex marriage. Morris points out, accurately, that no such amendment was being discussed at the time (the law was signed in 1996). He says that it was Vermont’s "civil unions" statute that inspired the law. That’s not true: Vermont’s high court ordered the state to enact civil unions in 1999, three years after the law was signed. The impetus for DOMA came from other court decisions (notably Hawaii’s), and from the Supreme Court’s Romer decision that year, which seemed to some DOMA backers to be putting the courts behind gay rights in a way they found objectionable.

This changes the facts of the column, but not the political calculation that went into the decision-making by the Clinton Administration.  I apologize for not attempting to verify Morris’s contentions.

South Carolina Marriage Amendment

Xark, as usual, is commenting on hot-button issues and asking all of us to take a position. His latest challenge asks readers to speak out in opposition to the South Carolina Marriage Amendment:

"Must Article XVII of the Constitution of this State be amended by
adding Section 15 so as to provide that in this State and its political
subdivisions, a marriage between one man and one woman is the only
lawful domestic union that shall be valid or recognized; that this
State and its political subdivisions shall not create, recognize, or
give effect to a legal status, right, or claim created by another
jurisdiction respecting any other domestic union, however denominated;
that this amendment shall not impair any right or benefit extended by
the State or its political subdivisions other than a right or benefit
arising from a domestic union that is not valid or recognized in this
State; and that this amendment shall not prohibit or limit the ability
of parties other than the State or its political subdivisions from
entering into contracts or other legal instruments?"

The issue, like Xark’s call to arms on the environment some months back, guarantees passionate belief on both sides of the issue. But, what is the issue?  Is SC in the grip of conservative Neanderthals whose only goal is to keep the gay community suppressed, or is this a veiled attempt to attack all forms of social commitment outside of a legal definition of marriage, or is this another case of defending state’s rights in the face of judicial activism run amok?  It is, apparently, another battle in the Cultural War, which almost guarantees that the partisans of either side will not accept anything less than total obeisance to their position, nor will they brook any dissent.  And that’s too bad, because this really is a complicated matter, worthy of discussion without the introduction of shibboleths, bromides, and ad hominem attacks.

For a review of the status of similar legislation in our great country, go here . It is clear that our state is NOT leading the charge against gay marriage, or attempts to define marriage in a traditional sense. It is also true that, based on the action at the state level, a majority of citizens in a majority of states have voted "Yes" to their version of bills similar to this amendment.  Clearly, a vocal, well organized, politically oriented Minority seeks to challenge the status quo of this issue. That portion of the Citizenry is exercising their rights, as provided for and protected by the Constitution.  This is as it should be, and the voice of the People will be heard in November. 

For additional perspective on the issue, Stephen Den Beste comments here.  Please read his entire post, but here is an excerpt:

I support gay marriage. And I’m glad to see that a lot of states are
considering, or have already passed, amendments to their state constitutions
forbidding gay marriage. My position isn’t inconsistent, because there’s a
deeper issue involved.

What is the function of an electoral system? You can argue about that all
day, but it turns out that the deep purpose is to convince people to accept
that they’ve lost. We, as citizens of a republic, have made a compact with each
other that we will make certain decisions collectively through some combination
of voting and representation, and we know that inevitably the process will make
at least some decisions that we as individuals despise.

But our compact with one another is that if the process was reasonably honest
and if everyone participated, the losers will concede defeat. Of course, they
may try to work within the system to change those decisions, and that has
happened many times. But the compact is that such decisions change because the
majority agree with the change, and the activist minority will work to convince
the majority that change is needed, and will accept their defeat in the mean
time.

Some activists in this country have been breaking this compact. It’s been a
particular problem with leftists over the last 35 years. Instead of trying to
convince the majority that certain things should change, they’ve been making an
end-run around the electoral system and getting those changes made via activist
judges.

Irrespective of the merits of individual decisions, the basic problem with
this is that it cheats the electorate by forbidding them from participating in
the process of collectively making those decisions. And the "losers" don’t
concede defeat, because they never got their chance to participate in the
decision.

Now, some could argue that his use of the word "leftist" is inappropriate, given that both sides have attempted to use the courts to further their agendas in the absence of legislative/citizen support, but his point is well considered.  We live in a democracy.  We have the right to vote on matters that are important. I will vote yes on the amendment, not because I oppose gay marriage, or common law marriage, or the denial of benefits to domestic partnerships; but because I support the right of the People to decide on the important issues of our time.

Veiled Conceit – A Followup

Yesterday, we posted a link to an editorial in The Australian that discussed the clash of cultures between Muslims and Europeans. Yes, a bit controversial, but the defense of our society and culture is important. Today, a view from the other side of the cultural divide is revealed…..which ought to tell us that the struggle will be long and hard.  Here are our Australian friends reporting on the latest utterance from the Mufti………Unbelievable!

Excerpt:

In the religious address on adultery to about 500 worshippers in
Sydney last month, Sheik Hilali said: "If you take out uncovered meat
and place it outside on the street, or in the garden or in the park, or
in the backyard without a cover, and the cats come and eat it … whose
fault is it, the cats or the uncovered meat?

"The uncovered meat is the problem."

The sheik then said: "If she was in her room, in her home, in her hijab, no problem would have occurred."

The meat indeed.

H/T Little Green Footballs

The Veiled Conceit of Multiculturalism

American Future provides a link to an editorial in today’s The Australian that identifies the wrong-headedness of those that would impose the standard of multiculturalism on the values of Western Europe and the US.  Certainly respect for the values of other cultures is an admirable goal of any enlightened society, but only when those other cultural values do not impinge on the values and morals of the host society. There is, apparently, a very fine line between multiculturalism and cultural imperialism, and, honestly, it seems to us that our culture/value system is the victim of that imperialism in these early days of the 21st century. As The Australian notes:

HOW tolerant must a free society be of those who are intolerant of the values it holds dear?…But no matter the justification, the question remains whether a practice with its roots and justification in medieval Arabia has a place in a postmodern secular society such as Australia. Religious beliefs are by definition sacred, and as much as possible they should be a private matter. But when an individual or a community feels that their personal practices should trump widely held values while also setting themselves apart, the question arises as to whether those people would not be more comfortable in a place where such behaviour is the norm…

While tolerance is certainly a positive virtue that should be strived for, it cannot be a cultural suicide pact. A culture that is tolerant of those who are intolerant of its freedoms is ripe for destruction, and bit by bit will see all it values eroded. And radical Islam knows this. Just as an Australian wouldn’t go to Saudi Arabia to wear a bikini on the beach and drink beer in the corner pub, those who see the proper role of women as subservient, anonymous and under cover should not expect a postmodern secular democracy such as Britain or Australia to accommodate these beliefs. Australians, who quite properly want their daughters, sisters, wives and mothers to be able to achieve anything, are right to feel uncomfortable about religiously mandated coverings and the limits they imply. We do not allow practices such as female genital mutilation simply because they are practiced by an immigrant "other". Disappointingly, those who have traditionally been a positive force for the liberation of women against oppression in other spheres have here largely been silent on the question of Islam’s beliefs concerning half of humanity….

Government-supported ethnic essentialism ultimately leads to segregation – anathema to an immigrant nation such as ours whose success lies in the adoption of common values rather than the preservation of divisive behaviours. In the debate over values, far better that we appeal to our shared humanity rather than encourage behaviours that seek to demonstrate separateness and superiority.

Well said.

The NY Times on the SWIFT Program

Simply and quickly, the Ombbudsman of the NYT, Byron Calame, acknowledges the legality of the SWIFT Program and apologizes for releasing details of the legitimately secret program:

Banking Data: A Mea Culpa

Since the job of public editor requires me to probe and question the published work and wisdom of Times journalists, there’s a special responsibility for me to acknowledge my own flawed assessments.

My July 2 column strongly supported The Times’s decision to publish its June 23 article on a once-secret banking-data surveillance program. After pondering for several months, I have decided I was off base. There were reasons to publish the controversial article, but they were slightly outweighed by two factors to which I gave too little emphasis. While it’s a close call now, as it was then, I don’t think the article should have been published.

Those two factors are really what bring me to this corrective commentary: the apparent legality of the program in the United States, and the absence of any evidence that anyone’s private data had actually been misused. I had mentioned both as being part of “the most substantial argument against running the story,” but that reference was relegated to the bottom of my column.

The source of the data, as my column noted, was the Society for Worldwide Interbank Financial Telecommunication, or Swift. That Belgium-based consortium said it had honored administrative subpoenas from the American government because it has a subsidiary in this country.

I haven’t found any evidence in the intervening months that the surveillance program was illegal under United States laws. Although data-protection authorities in Europe have complained that the formerly secret program violated their rules on privacy, there have been no Times reports of legal action being taken. Data-protection rules are often stricter in Europe than in America, and have been a frequent source of friction.

Also, there still haven’t been any abuses of private data linked to the program, which apparently has continued to function. That, plus the legality issue, has left me wondering what harm actually was avoided when The Times and two other newspapers disclosed the program. The lack of appropriate oversight — to catch any abuses in the absence of media attention — was a key reason I originally supported publication. I think, however, that I gave it too much weight.

In addition, I became embarrassed by the how-secret-is-it issue, although that isn’t a cause of my altered conclusion. My original support for the article rested heavily on the fact that so many people already knew about the program that serious terrorists also must have been aware of it. But critical, and clever, readers were quick to point to a contradiction: the Times article and headline had both emphasized that a “secret” program was being exposed. (If one sentence down in the article had acknowledged that a number of people were probably aware of the program, both the newsroom and I would have been better able to address that wave of criticism.)

What kept me from seeing these matters more clearly earlier in what admittedly was a close call? I fear I allowed the vicious criticism of The Times by the Bush administration to trigger my instinctive affinity for the underdog and enduring faith in a free press — two traits that I warned readers about in my first column.

Rich stuff this,….vicious criticism by the Bush administration.

Apology Accepted….

Wretchard on the War

Wretchard is one of the best examples of what the Blogosphere can offer to informed discussion on issues of the day. He was, by accident, one of the first bloggers found by the Agricoli in our search for information in the Blog Universe. He remains a prime source today.

Today’s commentary offers us a deeper understanding of the nature of the conflict between the West and Islam. Although lengthy, the reader will be rewarded with insight at the conclusion.  Take a minute or two and read it……….we promise you’ll like it.

A taste, via excerpt:

After Sayyid Qutb was scandalized by Harry Truman’s America he was later brutalized by Gamal Abdel Nasser’s prisons. It may have been the low cut dresses of American women that first planted the seed which was to grow into al-Qaeda’s ideology but it was the blood shed by Marxist torturers that watered it. Qutb and later Osama bin Laden saw Marxism and secularism as agencies of the Devil; but to destroy them it was first necessary to destroy the world’s system administrator: the USA. One of the real ironies of the War on Terror is that the most hated targets of al-Qaeda, the culturally liberal — the gays, feminists, entertainers, civil libertarians, artists and novelists — are its most vocal critics. It is only slowly dawning on al-Qaeda’s pet hates that the Global Jihad is exactly about them and their whole belief system. Salman Rushdie knows it; Sayyid Qutb knew it. Some parts of Europe are beginning to know it; most will never admit it even to the second the blade is drawn across their throats. But the second greatest irony that the surviving non-Muslim believers in Europe — the Christians, Buddhists and Jews — have not only had to bear the intellectual brunt of defending liberalism up to now, but are now being asked to give up the public profession of their own faith in order to preserve it.

Keegan: Iraq is Not Viet Nam

President Bush, in a recent interview, acknowledged that he saw some similarities between the conflicts in Iraq and Viet Nam.  He was careful to explain his position, and did not equate the current situation to Viet Nam in a military sense, but in the sense that the Media wants to declare the Iraq war lost, as they did so successfully in Viet Nam. Nonetheless, his remarks are being trumpeted by the Big Media as a "confession" that the anti-war establishment is as right today as they were in 1968 – 1969.  Fortunately for the rest of us, the Blogosphere allows unfiltered access to facts, and bloggers willing to push back against those who wish, almost more than impeachment hearings, to wrest defeat from victory.  John Keegan makes the case, admirably, in a column published today.  His main point:

The Vietnam war was not lost on the battlefield, but in the American media’s treatment of news from the front line.

Read it here.

H/T Real Clear Politics

The End of Habeas Corpus or the Beginning of a Serious War on Terror?

Many trees and gallons of ink have been consumed to accompany the hand-wringing, the tears, and the expressions of outrage over the imposition of fascist tactics in the "destruction" of Habeas Corpus. All because Congress has legislated, and President Bush has signed, the law creating military commissions to handle the imprisonment and punishment of the Jihadi terrorists. To those who believe that in our Judiciary lies the solution to many of our most intractable problems, the Supreme Court’s interjection into the conduct of the GWOT through the Hamdan decision was a welcome slap-down of a Congress that refused to act and a President all too willing to make a decision in the vacuum.

Recognizing too late that the Judicial Activist cabal of the SCOTUS is still alive and kicking, Congress was finally forced to legislate, i.e., express the will of the People. And act they did, with the prodding of the Executive Branch, to produce a law that re-establishes the balance between the Judiciary, Legislative, and Executive branches envisioned by our Founders.

In today’s Wall Street Journal, John Yoo explains the over-reach of the Judiciary in this case, and the necessary and right decision by Congress to resist, and to act, in a way that is long overdue. Would that Congress would speak with a clear voice on several other important issues.

From Yoo, in part:

During the bitter controversy over the military commission bill, which President Bush signed into law on Tuesday, most of the press and the professional punditry missed the big story. In the struggle for power between the three branches of government, it is not the presidency that "won." Instead, it is the judiciary that lost.

The new law is, above all, a stinging rebuke to the Supreme Court. It strips the courts of jurisdiction to hear any habeas corpus claim filed by any alien enemy combatant anywhere in the world. It was passed in response to the effort by a five-justice majority in Hamdan v. Rumsfeld to take control over terrorism policy. That majority extended judicial review to Guantanamo Bay, threw the Bush military commissions into doubt, and tried to extend the protections of Common Article 3 of the Geneva Conventions to al Qaeda and Taliban detainees, overturning the traditional understanding that Geneva does not cover terrorists, who are not signatories nor "combatants" in an internal civil war under Article 3.

Hamdan was an unprecedented attempt by the court to rewrite the law of war and intrude into war policy. The court must have thought its stunning power grab would go unchallenged. After all, it has gotten away with many broad assertions of judicial authority before. This has been because Congress is unwilling to take a clear position on controversial issues (like abortion, religion or race) and instead passes ambiguous laws which breed litigation and leave the power to decide to the federal courts.

Until the Supreme Court began trying to make war policy, the writ of habeas corpus had never been understood to benefit enemy prisoners in war. The U.S. held millions of POWs during World War II, with none permitted to use our civilian courts (except for a few cases of U.S. citizens captured fighting for the Axis). Even after hostilities ended, the justices turned away lawsuits by enemy prisoners seeking to challenge their detention. In Johnson v. Eisentrager, the court held that it would not hear habeas claims brought by alien enemy prisoners held outside the U.S., and refused to interpret the Geneva Conventions to give new rights in civilian court against the government. In the case of Gen. Tomoyuki Yamashita, the court refrained from reviewing the operations of military commissions.

In Hamdan, the court moved to sweep aside decades of law and practice so as to forge a grand new role for the courts to open their doors to enemy war prisoners. Led by John Paul Stevens and abetted by Anthony Kennedy, the majority ignored or creatively misread the court’s World War II precedents. The approach catered to the legal academy, whose tastes run to swashbuckling assertions of judicial supremacy and radical innovations, rather than hewing to wise but boring precedents.

Read the rest of his commentary here.

Suppression of Free Speech – The Latest

The DOI attempt to impose a filtering system on its servers has moved from the not-so-well-intentioned to the nefarious-attempt-to-block-particular-sites to the latest example of our Federal Government’s all too well known tendency to screw up the simple.  The story keeps getting better, with the latest information coming from a techie on the inside who claims the vendor of the "filter system" is incompetent and the software poorly written. The FBI cannot implement a system-wide database, the DOI cannot find a competent vendor/product, the FAA cannot implement the much needed updates for Air Traffic Control, and yet the Federal government wants to take control of the Internet.

Read the details of the DOI Filter kerfuffle here.

The Agricoli lived, for several years, in the wonderful city of Indianapolis.  During that golden time, the city (by the way, the city and county operate under a consolidated government) was led by Stephen Goldsmith, a champion of privatization.  He believed that government was lousy at operations, but great at raising money. He therefore instituted a program whereby most government services were out-sourced through competitive bidding. Indy was, and still is, a clean, safe, attractive city, for the most part, that works.  Maybe there is a lesson to be learned.