Maggie Gallagher, president of NOM, writes:
Despite the media hoopla, this is not the first case in which a federal judge has imagined and ruled that our Constitution requires same-sex marriage. A federal judge in Nebraska ruled for gay marriage in 2005 and was overturned by the U.S. Court of Appeals for the Eighth Circuit in 2006.
The Proposition 8 case on which the Ninth Circuit's Judge Vaughn Walker ruled Wednesday was pushed by two straight guys with a hunger for media attention, lawyers with huge egos who overrode the considered judgment of major figures in the gay legal establishment, thinkers who feared exactly what we anticipate: the Supreme Court will uphold Prop. 8 and the core civil rights of Californians and all Americans to vote for marriage as one man and one woman.
Judge Walker's ruling proves, however, that the American people were and are right to fear that too many powerful judges do not respect their views, or the proper limits of judicial authority. Did our Founding Fathers really create a right to gay marriage in the U.S. Constitution? It is hard for anyone reading the text or history of the 14th Amendment to make that claim with a straight face, no matter how many highly credentialed and brilliant so-called legal experts say otherwise.
Nevermind the ad homs (ego-driven straight guys!) and the beggings of the question (proper limits of judicial authority!), I don't understand the last sentence. Allow me to reconstruct:
- Many highly credentialed experts, with the proper knowledge and experience, assert x.
- no one can seriously claim x.
Pardon my confusion, but it seems like just the right kind of people–qualified straight people with straight faces–have made the assertion, I think that means it has some initial plausibility.
Now of course, the controversy might be how one interprets "x" in my reconstruction. And this is where Ms. Gallagher hollow mans–I don't think anyone has made the claim she alleges ("created an [enumerated] right…."). So no one, with a straight face or otherwise, is arguing that the COTUS (anyone ever say that? They should) utters the phrase "gay marriage." Of course, as far as I know, it doesn't say "marriage" either.
It's interesting that this sort of orignalism seems to foster a belief that the interpretation of the constitution is just a matter of common sense. No need for specialized study of history, or the relevant texts, or a knowledge of law. "We" know that the authors of the 14th amendment weren't thinking about gay marriages, and that's enough. It's as though the pythagorean theorem only applies to triangles with sides measuring, 3,4, and 5.
And nevermind the actual argument that Judge Walker provides! That's beside the point because "we" know what the authors of the 14th amendment were thinking about and that's all that matters.
Well, I guess we'll maybe get to see whether Justice Kennedy follows the logic of his own recent views on discrimination and homosexuality in the next few years or whether he pens a shameful Bowers v. Hardwick 2.0. Oh wait, he’s another one of those “experts” who we need to ignore.
The very fact that their is a judicial branch which is co-equal with the executive and legislative is an implicit argument AGAINST the "original intent" nonsense. Why require the interpretation of the law if that interpretation is already stipulated in advance by "original intent"?
By the bye, as an example of well presented logical analysis, Judge Walker's ruling is worth the reading:
http://i.cdn.turner.com/cnn/2010/images/08/04/prop8ruling.pdf
"many powerful judges do not respect [the] views [of the American People]" — we don't employ judges to respect views except those of precedent. Judges are not put into position to uphold popular morality, but rather to weight the actions wrought by popular morality against law as it is written.
And who are the "thinkers who feared exactly what we anticipate," and how did the author arrive at an accurate synopsis of what these thinkers conclude?
In the rest of her article, there are some other juicy assumptions, e.g., "commonsense view that marriage is the union of husband and wife, because children need moms and dads" as though this is the sole criteria for which people marry or should marry.
Another, that marriage is "an institution the government did not make, cannot in justice redefine." Actually, marriage of any sort in any country is an "institution" because it is legally defined with recognized parameters and specially alotted privileges. Otherwise, you are just partners living together whose "marriage" is merely the practical commitment to each other for shared purposes.
"The Supreme Court and Congress will reject his biased view." Whose biased view? At the risk of committing a genetic fallacy, I'd say, "of course she would say this…as the chairman of the National Organization for Marriage with its 'mission to protect marriage and the faith communities that sustain it.'" True to so many of the arguments I have read in "defense" of marriage againsts "threats" to its integrity, the arguments rely on fallacy of nearly every type in the taxonomy to give them even imagined substance.