Friday, June 26, 2015

A question that interests me in the wake of Obergefell

Rather than hang another comment on Pik's post where it would be diversionary anyway, I'm just going to start a new thread to focus on it. I picked this excerpt from Chief Justice Roberts' dissent from Ann Althouse's blog (she favors SSM). The empasis is mine.

The fundamental right to marry does not include a right to make a State change its definition of marriage. And a State’s decision to maintain the meaning of marriage that has persisted in every culture throughout human history can hardly be called irrational. In short, our Constitution does not enact any one theory of marriage. The people of a State are free to expand marriage to include same-sex couples, or to retain the historic definition.

This is obviously 10th Amendment territory. But my specific question is this. Let's say a state - Alabama might be the likeliest candidate - just says, yeah, we agree with Roberts. We're just going to keep our historic definition. Not sue, mind you, simply ignore Obergefell entirely. Terrible precedent, to be sure, and Roy Moore could expect some absolutely devastating Tweets.

But, really, what happens next? Paratroopers? Hardly. Economic sanctions? What? Against whom or what?

In short, what could a state actually suffer for simply ignoring Obergefell and not recognizing SSM?

It's worse than you think

Keith invited my comments on the Obergefell decision today over at his fine post on King v. Burwell (RTWT, as they say).  Because my take on this SSM decision will be too long to comfortably fit in a comment, tho -- it'll have to be in this new post.  But as I said, read Keith's post too.

As indicated in the title, my take on the Supreme Court decision regarding SSM is that it is worse, far worse, than you might be lead to believe from the media reports.  All you need to know about the majority holding is contained in its first sentence:

The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity*.

The holding then invokes the previously-tried much-reviled doctrine of "substantive due process", by which those fundamental rights as identified by the "reasoned judgment" of the courts as "so fundamental that the State must accord them its respect" are protected by the Fourteenth Amendment -- i.e., protected by the imposition of state laws that impinge on those rights. This approach of "substantive due process" was used in Dred Scott (which C.J. Roberts reminds us was "overruled on the battlefields of the Civil War"), and in the reviled, overruled, and now (by this case) resurrected Lochner case.  But history doesn't slow down Justice Kennedy --- not when his "reasoned judgment" can rewrite it by claiming that the Framers intended this result:

The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.

Like Hell they did.

Anyhoo, then the obvious bootstrapping of same-sex marriage into such a fundamental right then occurs, and voila: same-sex marriage is a fundamental right that must be granted by each state, and honored across state lines.  End of analysis.

All of the four dissents are strong, and do not shy from pointing out the damage that is done by the majority opinion.  All citizens should read all four of them.  Roberts points out Dred Scott and Lochner, and the evils those cases inflicted, as noted above.  Scalia rightfully rails against the "naked judicial claim to ... super-legislative power, a claim fundamentally at odds with our system of government".  Justice Thomas gives a lesson on the meaning of liberty, with this lead-in:

[T]he majority invokes our Constitution in the name of a "liberty" that the Framers would not have recognized, to the detriment of the liberty they sought to protect. Along the way, it rejects the idea -- captured in our Declaration of Independence -- that human dignity is innate and suggests instead that it comes from the Government. This distortion of our Constituion not only ignores the text, it inverts the relationship between the individual and the state in our Republic.

And Justice Alito wraps up the larger effect at the end of his dissent:

If a bare majority of Justices can invent a new right and impose that right on the rest of the country, the only real limit on what future majorities will be able to do is their own sense of what those with political power and cultural influence are willing to tolerate.... 

... I do not doubt that my colleagues in the majority sincerely see in the Constitution a vision of liberty that happens to coincide with their own.  But this sincerity is cause for concern, not comfort.  What it evidences is the deep and perhaps irremediable corruption of our legal culture's conception of constitutional interpretation.

Yeah, it's that bad.

Keith makes the point that the states make "cohabitation licenses" available to all comers, without discrimination, and that whatever the rest of us want to call it is up to us.  That might have been a response had the Supreme Court applied "equal protection" analysis -- but it most certainly is not a valid response given this decision.  We now have Supreme Court law that says that marriage is a fundamental right that must be granted by the state to any pair (for now) of humans (for now) who want it.  Discrimination has nothing to do with it -- marriage itself, as defined by the Court today and by courts in the future, is itself a fundamental right because of the dignity that it allegedly confers. So sorry, Keith, that ship has sailed.

And contrary to Flambeaux's point (while granting that this die may have been cast long ago -- but not as long ago as Justice Kennedy says), this case will in fact cause incalculable damage beyond its specific holding today.  Just like Roe v. Wade, much of the populace will interpret this "right" to same-sex marriage as a public good -- "gee, if the state can't prevent me from getting (an abortion; married to another guy), it must be a good thing for me to do."  This case is worse than Roe, though, because at least in Roe the Court allowed room for some limitations, regulations, etc. in its out-of-the-blue trimester analysis.  There's no such room here -- this one is carved in stone totally, and completely.

Of course, this was the goal of the gay political agenda all along -- to require the Nation to agree that gay is just as good as hetero, and that it is immoral to think, much less say, otherwise.  You especially can't say otherwise in this current age of bigotry witch hunts, in which one evil racist nut acts out his own bigotry, meaning of course  good-bye to Lake Calhoun.

Legally, we'll now be in the realm of clashing rights:  same-sex marriage vs. religious freedom.  One would think that the judge-invented SSM right would lose to the express First Amendment free exercise right, but all you have to do is look at the abortion counseling cases to see how that often doesn't matter.

Courage and action (not BOp "strategic retreat") will be required in this new age. A price will be exacted for one's convictions.  Parochial schools and universities may well have to do without federal and state funding. Murray Option actions will be required.  And states and communities that want to resist may well have to suffer the inevitable corporate embargos.

Freedom is not free.

* Any in the class have any ideas as to what current hot topic might fall within "defining and expressing their identity"? Bueller?  Bruce (I mean) Kaitlyn?

My thoughts on the recent Supreme Court rulings

First and foremost, with respect to the first ruling in King v. Burwell, I owe Pik an apology. I had defended Chief Justice Roberts way back when for taking a strategic long view with an eye to setting up Obamacare for the kill later on. But Roberts' arguments in King now clearly show he sees the Court's role as one of providing a legislative rehabilitative salvation for the law rather than ruling on the text of it. That, and getting more Likes on Facebook.

He, at least I think Roberts is the one who made passing reference to this, is right on one point, though. It's fully in the hands of Congress to repeal and/or replace Obamacare as it sees fit. This is entirely as it should be. We shouldn't be hoping SCOTUS will do our difficult work for us any more than we should be hoping Roberts will shoot our dog for us to spare us the unpleasantness of the task. Now the situation is crystal clear: elect a Republican Congress with spine and a Republican President to sign their work into law and handle this whole matter the right way, as the writers of the Constitution intended.

Now, with respect to today's opinion in Obergefell there is one enormous question that immediately eclipses everything else: who will be the third and greatest fool in the Greater Fool Theory of Publishing to sign up to lose money on Rod Dreher's BO book? Dreher has been positively leaving a trail of bodily fluids the last several days in eager anticipation of today's ruling coming down as it did, because what's bad for Christian conservatives is good for anyone wanting to push a snake oil cure for what just hit them.

Aside from some unknown publisher's as yet unbooked losses, though, let's work through what today's Obergefell ruling really means.

First, if you're Rod Dreher or Ace at AOSHQ and you're reprising Bill Paxton's "Game over, man!" (NSFW) scene from Aliens, here's what's really going through your head: "Okay, I'm bent over this stump, I've dropped my pants, oh, my, what will happen to me next? Will they use a lube? Oh, it would be so much more terrible if they didn't use a lube, wouldn't it? It would! It would! I can hardly wait!"

Since I myself am not stump broke like Rod Dreher, here is, alternatively, what is going through my head.

A cohabitation license issued by the State must be available to all comers in order not to discriminate, which carries this interesting little clusterbomb implicit within it. Nothing in Obergefell mandates for two-person marriages or against triad or larger unions, plus, this is no longer the States' problem, not even the Feds' - it effectively rebounds right back to SCOTUS as soon as it arises.

Whether you wish to call two guys cohabiting for butt sex marriage or a dog show remains entirely up to you. If you whine, "but they'll make me call it marriage!", see stump broke, above.

If your church recognizes gay unions, consider getting another church that does not. Those that do not do so voluntarily can not and will not be forced to do so.

As for federal funding, if you can be bribed, please send your name and the particular favors, skills, goods, or elite access you are willing to barter for money to Keith care of EQE so that I may consider whether I have a need to buy you and use you for my own ends in some capacity.

In the meantime, the betting pool is now open on the publisher even more stupid than Judith Regan turned out to be.

Thursday, June 25, 2015

The anti-Christian sodomy flag of hate

The anti-Christian sodomy flag of hate

I believe it may have been John Nolte who first pointed this out, but when you see the flag pictured above, you're gazing upon the banner which champions unnatural sex between men and unnatural sex between women and the widespread anti-Christian hatred the recent popularization of those perversions have inspired.

Oddly, I'm not hearing many calls to ban this symbol of hatred of Christian morality, particularly among those obsessed with being on the right side of history.

Wednesday, June 24, 2015

Rod Dreher's Benedict Option values

Think of it: these Pentecostals were better off in the USSR than in America, because American freedom led to extreme decadence.

The Benedict Option solution to the decadence of freedom

UPDATE (as they say): If you ever wondered how, in addition to putting a strikingly incomprehensible image from Shutterstock into every post, Rod Dreher makes the robot brains of search engines believe he's written something long and profound, here's one way he goes about the stretch:

UPDATE 2: Reader Pikkumatti writes in the comments

It takes a special kind of sick bastard to publicly state, from the comfort and safety of his own leisurely life, that it is harder for Christians to live in the best place and time in history for the pursuit of freedom and virtue, than under one of the most murderous and soul-deadening regimes in history. This is an insult to all of us, and to the heroes who suffered through the Soviet regime. Dreher would better spend his time reading Gulag Archipelago than on his self-promoting booklist that he'll likely use to pump out yet another trite autobiography.

A recent homily made the point that, if you think it's hard to evangelize here in today's culture, imagine how much easier you have it than the early Christians in Rome did, yet they built the Church anyway.

And it is especially odd for someone who trumpets his religion at every opportunity to mislead on the nature of sin. The mere lack of opportunity to commit a particular sin does not necessarily make one virtuous.

UPDATE 3: Another reader, also named Pikkumatti, adds:

Here's how Christians in the Soviet Union were "better off" than they are in the US today:

The punishment for being a Christian in the Soviet Union was just as severe as the punishment for murder. There were two groups of laws under which believers were prosecuted. The first was for religious activity specifically, such as breaking one of the anti-religious laws. The second was for political or civil crimes, in­cluding “parasitism,” “hooliganism,” “slandering the Soviet system,” and “anti-Soviet propaganda.” Christians had to endure frequent searches and fines, harassment that was made serious by repetition and by the low incomes of those harassed. They were of­ten fired from their jobs, demoted to menial positions, and exiled or banished, usually to northeastern Russia. Those who were arrested could be held up to one year before a trial as the State “gathered evidence.” They waited in overcrowded cells infested with rats, lice, and bedbugs, sometimes in filthy water up to their ankles. Many Christians endured interrogations and torture by the KGB, including threats of castration, the elec­tric chair, prison, confinement to a psychiatric hospi­tal, and harm of family members.

Yes, that piece recounts stories of the Christian heroes who persevered in their faith while in the Gulag, whether they survived or not. But as I said, it is an insult of the highest order to those heroes and to Americans who built and maintained this Nation to assert that "Pentecostals were better off in the USSR than in America".

UPDATE 4: An additional comment adds this useful point:

And might I add, there is a special lack of self-awareness for someone who constantly tells his readers about the most minute details of his own medical issues (along with a reference here and there to his Ambien use) to state:

We have worked so hard as a culture to minimize pain, and to train ourselves to think of comfort and pleasure as our birthright, that we have left ourselves and our children vulnerable to this addiction. This false religion of Moralistic Therapeutic Deism is part of the package.

Dreher has truly been blessed to have lived without severe physical pain (certainly if he had, we would have read about it ad nauseam by now), or to have someone close to him in severe physical pain (sorry, Ruthie). Regardless of the cause, whether cancer, debilitating back pain, pain from major surgery, you name it -- pain relief is a blessing and a mercy to those who suffer. Yet Dreher feels free to insinuate that there is moral weakness in those who treat pain (and, by implication, those who seek relief from pain) is another brutal insult.