Good News: I Was Wrong (Sort Of)

June 27, 2013 | 83 comments
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It looks like the people of California have not been disenfranchised nearly as much as I was concerned about in my post yesterday. They have been disenfranchised at the federal level, but not at the state level. In its decision yesterday, the Supreme Court nullified the ruling of the (federal) Ninth Circuit that Prop 8 is unconstitutional. Many onlookers assumed that meant that the holding of the trial court, from which the Ninth Circuit was hearing an appeal, would be decisive for California law, and since the trial court held Prop 8 unconstitutional, that would mean that Prop 8 was nullified. But apparently only an appellate court’s decision on unconstitutionality is decisive for California law. So the trial court’s decision may apply to the specific people involved in the case, but not to California generally. The dust has hardly settled from this event, and probably won’t settle for years, but it looks like Prop 8 still stands, as decided by the people of California.

The ruling still says that the people of California may have the authority to make law themselves, but do not have the authority to defend it themselves at the federal level. It is upsetting to see a federal court refusing to recognize the fundamental principle of “government of the people, by the people, for the people” (as Lincoln memorably put it). However, if the lack of a defender means federal appelate courts won’t make any decision either way, then at least the feds are not interfering with the authority granted to California citizens by the state constitution.

It is rather intriguing to consider how this changes the relationship of the federal government to the people. It moves the federal government back more toward a kind of pact between States, rather than being the government of a nation—meaning, a people. If the people only have authority in their own persons at the state level, not the federal, then the state becomes the fundamental locus of legitimate government. I actually kind of like that, because with each passing year the people of the US seem less and less like one people, and more and more like Red America and Blue America, who will never see eye to eye on an increasing range of issues, but hopefully can still agree on a few very basic kinds of cooperation. At the same time, the federal government is becoming less and less representative of the people as a whole, and more and more incapable of even coming to meaningful decisions. If we can only pass a yearly budget one year in four or five, and can’t update the VRA at all forty years later, the operation is on the skids.

So, it is possible to read the SC decision in the Prop 8 case as a diminishing of the federal government, rather than of the people of the United States. Maybe I’m okay with that.

83 Responses to Good News: I Was Wrong (Sort Of)

  1. Howard on June 27, 2013 at 8:27 pm

    Wheeew, that was close, what a relief!

  2. Eric Facer on June 27, 2013 at 9:01 pm

    Ben, I think, as a practical matter, Proposition 8 is dead in the State of California.

    California is divided into four judicial districts: Northern, Eastern, Central and Southern. It was the Northern District that held Proposition 8 unconstitutional. Any gay California couple who wants to marry and who resides in the Northern District, can file a complaint just like the plaintiffs did in the recently-decided Supreme Court case, and that court will grant their requested injunction because the State won’t defend the case.

    The other three districts, as soon as each one has a test case, will probably issue rulings identical to that of the Northern District. In the outside chance that one of them sustained Proposition 8, then the plaintiffs would simply appeal to the Ninth Circuit. You don’t have to be a prophet to predict how the Ninth Circuit will rule.

    Once all four federal judicial districts have weighed in on this issue, the administrative agencies responsible for issuing marriage licenses will probably no longer force gay couples to go through the motions of filing a complaint in court. Technically, should they? Perhaps. But that brings us full circle to the problem confronted by the Supreme Court: the sole entity with legal standing to compel the administrative agencies to require gay marriage license applicants to first seek a court injunction appears to be the State of California, which won’t do butkus.

  3. Lorian on June 27, 2013 at 9:51 pm

    Really, Ben? Breitbart is your news source proof? I’d do a little backup research on that one… ;)

  4. Heather on June 27, 2013 at 9:53 pm

    Not so fast.

    California state officials are treating the original trial decision as binding across the entire state. Pretty soon, the state officials likely will order all county officials to ignore Prop. 8 and grant marriage licenses to gay couples. The problem is that even if the original decision is binding only in one part of California, it’s unlikely that anyone in other parts will be able to force the state officials to follow Prop. 8. The real mystery is what happens if a county official still refuses to grant marriage licenses to gay couples. The official might lose her job or otherwise be punished, which might spur additional litigation. Who knows?

    The takeaway, though, is that Judge Walker’s opinion likely will become operative across the entire state simply because California state officials are treating it as binding across the entire state.

    http://www.scotusblog.com/2013/06/the-fate-of-same-sex-marriage-in-california-after-perry/

  5. Jax on June 27, 2013 at 9:58 pm

    At this point the best answer for anti-SSM persons is to save their money on useless court costs (you’re going to lose!) and use it to move to a state that defines marriage as you like it.

  6. Lorian on June 27, 2013 at 10:00 pm

    Eric #2 –

    But that brings us full circle to the problem confronted by the Supreme Court: the sole entity with legal standing to compel the administrative agencies to require gay marriage license applicants to first seek a court injunction appears to be the State of California, which won’t do butkus.

    OR anyone who can prove to the court that they are harmed by same-sex couples marrying in the state of CA. Which Protect Marriage failed to do even when provided with ample opportunity both before the 9th Circuit and SCOTUS. That’s the problem. No one is harmed by allowing same-sex couples equal access to civil marriage. Otherwise there’d be someone with standing to defend Prop 8.

  7. David Redden on June 27, 2013 at 10:02 pm

    Ben, this is better than your last post on the topic, which was absurdly hyperbolic, particularly from you, but I still take issue with your continued misunderstanding of the scope of the holding in Perry.

    You say “The ruling still says that the people of California may have the authority to make law themselves, but do not have the authority to defend it themselves at the federal level.” This is still only partly right. More accurately, federal appellate courts do not have jurisdiction to hear an appeal by a private non-party individual or entity who cannot show a concrete harm to itself, but is instead attempting to step in for the state, which was a party, in order to defend a law against constitutional attack.

    I know…it sounds so boring when communicated accurately, but that should tell you something. Namely, it’s kind of a boring decision.

    See, nobody need get bent out of shape here, because people still have authority to defend laws, notwithstanding Perry. The key ruling in this case only applies within the specific set of facts presented in the case, which so far have been, and will likely continue to be, rare. Furthermore, the constitutionality of various laws comes up from time to time in the context of private disputes, in which case at least one of the parties to the dispute have the opportunity to “defend” a law within that context. Finally, there are many types of laws and many ways to defend them. We defend them through advocacy for better laws, through careful consideration when creating and enacting them, by serving honorably as a juror, by voting for people who uphold the law, by obeying the law, and any number of other ways.

    In my opinion, whether you agree or disagree with the holding in the case–and there are certainly valid reasons to disagree–the Perry decision has little effect on the balance of power between the governors and the governed, contrary to the tenor of your original post. But it looks like you might be catching on to that somewhat now, and it’s past my bedtime, so I’m going to leave you alone now, other than to say that it’s my hope that the people of California will rise to the occasion and rid themselves of this terrible amendment.

  8. Lorian on June 27, 2013 at 10:03 pm

    Heather –

    Pretty soon, the state officials likely will order all county officials to ignore Prop. 8 and grant marriage licenses to gay couples.

    Actually, they are just waiting for the 9th Circuit to lift its stay. Should happen within about 30 days, last I heard.

  9. Lorian on June 27, 2013 at 10:07 pm

    Jax #5 – Well, Jax, that’s probably only a temporary solution, because it will clearly soon become untenable for couples to be recognized by the federal government as being married, but then move to another state where the state doesn’t recognize their marriage, and suddenly the federal government doesn’t either. All that is needed is for a gay couple married in MA to retire to FL, and then have one spouse die and the other spouse attempt to collect Social Security, and be denied because FL doesn’t recognize their MA marriage, and so the feds don’t either. Then suit will be brought and SCOTUS will have to admit that it is unreasonable to deny the constitutional protection of the Full Faith and Credit Clause to same sex couples when it is extended to opposite sex couples.

    So, moral of the story, if you decide to move to FL or TX to avoid dealing with married gay couples, don’t get too comfortably. ;)

  10. Jax on June 27, 2013 at 10:10 pm

    Lorian,

    True enough! I accepted long ago that we anti-SSM people are going to lose this fight. Doesn’t mean we’ll stop fighting though. Since the entire legal code is based in regulating morality, I see no reason it shouldn’t codify mine :)

  11. Lorian on June 27, 2013 at 10:15 pm

    No, Jax. Not in “regulating morality.” In “defending the free exercise of individual rights up to the point where they begin to infringe upon the rights of another individual.” Our laws are not based upon the moral teachings of any particular religion. We don’t prohibit murder because the Bible says so, but because it removes another person’s human right to life.

  12. Heather on June 27, 2013 at 10:34 pm

    Lorian:

    I embrace Locke’s harm principle as a normative matter. But it’s weak descriptively. Otherwise, how do we explain prostitution laws or the war on drugs?

    And besides, Locke’s harm principle is in fact a moral principle. Some moral principles are rooted in religion. Others are rooted in philosophy. My view is that we should adopt moral principles rooted in reason (as opposed those to rooted in unprovable religious claims) to govern a multicultural society. Which I’m guessing is where you’re at. I just wanted to point out my general agreement with the claim that “the entire legal code is based in regulating morality.”

  13. Steve Smith on June 27, 2013 at 10:42 pm

    But Jax, why limit yourself to just fighting gay marriage. Christian groups discontinued Crusades centuries ago. Let’s bring those back, and retake Jerusalem from the heathens.

  14. Jax on June 27, 2013 at 10:45 pm

    Lorain,

    My comment on the legal code only dealing moral issues is a paraphrase of Dallin Oaks. I bet he has a better grasp of what the legal code does and does not do than either of us.

  15. Steve Smith on June 27, 2013 at 10:45 pm

    Oh and yes, I caught the reference to the right-wing propagandist website breitbart.com as well. Ben you try hard to mask your political sympathies and to appear objective, but not hard enough. Anyhow good luck debating to all. I believe I’m done for now.

  16. Ben H on June 27, 2013 at 10:47 pm

    I trust that high-level officials in the State of California will do everything they can to handle marriage the way they want to, regardless of the law. Whether or not they can be constrained to honor the law in the way they carry out their jobs is an interesting, but separate question. We have plenty of lawlessness among public servants these days, especially in California.

    Eric Facer, you are probably right that very soon same-sex couples will have little trouble getting a marriage license in California. It is unlikely that the Northern District will rule differently in the future, and it is likely that at least some other districts will rule in the same way. That is an open question, though; some may not. I suppose now that they know what the Ninth Circuit thinks about the case, state officials would probably be willing to nominally defend Prop 8 in another appeal, just for the sake of getting an appellate court ruling. So, yesterday’s ruling may just mean a delay in the process of finding Prop 8 contrary to the federal constitution in an appellate court, or even at the Supreme Court. That, and a rather fundamental change in how we (should) think about our relationship to the federal government. I kind of like the idea that fundamentally I am a Virginian right now.

    Heather’s link points to various likelihoods about how this will play out in practice, but it seems far from clear what the actual significance of this ruling is. Also, the significance regarding Prop 8 in particular depends heavily on how various other officials and judges and clerks act, going forward.

    Lorian, the court’s finding that no one is harmed by marrying people who should not be married is founded on air. It is based on an untenably narrow construal of harm, as I argued on my other post. Fundamentally, harm is not the relevant category here (although we can also express the problem in terms of harm), but authority, and the court’s decision either ignores or nullifies the fact that it is fundamentally on the basis of the authority of the citizens that any law or government has legitimacy. (See also my comment #63 on the other thread)

    Judgments of what is harmful are based on judgments about what is good and bad, right and wrong, and hence are deeply dependent on the values of the person judging. In this case, the court’s standard of “harm” is wrong. For the moment I rest my case for this claim on the point about the proper basis of government. One could also argue the question of harms with regard to the question of marriage in particular, but I’ll leave that for another occasion.

    David Redden, my point about “harm” and standing applies to your objection, too. The court gets standing wrong here because it gets both harm and authority wrong. This is a less dramatic result than I had originally suspected, because this case has not led to Prop 8 being legally struck down. If it is nullified, either formally or practically, through some other process, that is another question. But to say that only people who have been harmed according to the court’s definition of harm can defend a law in court is to acknowledge only people’s ability to be consumers and victims, and not citizens. But the entire basis of the American system is that we are more than this.

    So, as I said in OP, either this is a very upsetting ruling, or the federal government just got demoted to what it probably was in the first place: an appendage to the collection of States. If it’s the latter, I think I can get used to that, and even welcome it.

  17. Lorian on June 27, 2013 at 10:48 pm

    Heather, agreed, insofar as “morality” is defined solely in terms of basic rights and demonstrable harm, not religious prescription/proscription with no rational or clear basis other than, “My religious text/leader/deity said so.”

  18. Lorian on June 27, 2013 at 10:53 pm

    Jax #14 – I don’t accept Dallin Oaks as either a moral or legal authority. The fact that he has a law degree and is a member of the Quorum of the 12 does not mean that he holds any authority to determine my or anyone else’s legal rights. As a member of the church, you may choose to submit to his moral authority. I’m bound by no such obligation.

  19. Lorian on June 27, 2013 at 11:07 pm

    Ben # 16 –

    Fundamentally, harm is not the relevant category here (although we can also express the problem in terms of harm), but authority, and the court’s decision either ignores or nullifies the fact that it is fundamentally on the basis of the authority of the citizens that any law or government has legitimacy.

    Again, Ben, EXCEPT insofar as the citizens attempt to exercise their authority by depriving other human beings of basic rights and equality because of prejudice. The founders did not intend for the authority of the majority of citizens to trump the rights of the minority. You have already stated that you agree that there are basic rights which are not subject to the whim of the majority. You simply do not consider the rights of gay people to equal treatment under the law to be among those rights.

    Apparently SCOTUS (at least 5 of them) disagrees with you, based upon Kennedy’s majority opinion in the DOMA ruling.

    I would still like to hear what you consider to be “harm” caused to Protect Marriage which would give them legal standing to defend Prop 8 (other than the supposed “harm” of not being considered “harmed” enough to keep Prop 8 in play when it causes clear harm to the class of same-sex couples denied equal protection). I hear you say that the “harm” comes in the people having their will at the ballot box overturned. But isn’t that what is supposed to happen when the people pass discriminatory law? Would you consider it “harm” if the people passed a measure which segregated schools and public accommodations by race, and the courts declared the measure unconstitutional? Harm — because the will of the people was overturned? That’s circular reasoning. They are harmed because the court didn’t consider them harmed enough to have standing. The people are harmed because their law which they passed harmed someone else and was declared unconstitutional. So it can’t be declared unconstitutional because the people passed it and are harmed if it is invalidated.

    No, the harm the court is asking to see demonstrated is specific — What harm will it cause to either the members of Protect Marriage or to the people of the state of California if same-sex couples are permitted to marry? Not, “The people of the state of CA will be harmed because they didn’t *want* gays to marry, but gays got to marry anyway, so now the people are harmed.” That won’t cut it.

    So, what harm, Ben?

  20. Jax on June 27, 2013 at 11:18 pm

    Lorain, I’m not appealing to him as a moral authority at all. But as a lawyer, and former member of the Utah Supreme Court, I suggest his experience in law makes his opinion on what the law is/does (regulates morality) is more apt to be correct than either of our opinions on the law.

  21. Lorian on June 28, 2013 at 12:11 am

    Jax, I will refer you to my response to Heather in post # 17. It doesn’t matter to me where Dallin Oaks got his law degree or how long he sat on Utah’s Supreme Court, any more than it matters to me that he’s a member of the 12. None of these things mean that he gets to redefine our constitutional principle of separation between church and state or suggest that our laws should be based upon the moral teachings of his or anyone else’s religions. If this was the intent of his comment, then I most strenuously disagree with it. If, on the other hand, his intent was of the more philosophical nature as discussed between myself and Heather, I don’t have a problem with it. That, however, was clearly not the understanding *you* implied in your post where you first referenced Oaks’ comment. You seemed to suggest that Oaks’ intent was to legislate religiously-based morality, and that you should therefore be entitled to see your own religious morality enforced by law. If that’s not the case, I’ll happily retract.

  22. palerobber on June 28, 2013 at 12:12 am

    Many onlookers assumed correctly, because they don’t get their legal commentary from rightwing troll sites.

  23. Andrew S. on June 28, 2013 at 12:18 am

    California Constitution Article III, section 3.5 does seem to be an interesting twist on things, but I mean, it’s not as if it’s a new section. It’s already been hashed out before in California court cases:
    http://law.justia.com/cases/california/calapp3d/103/590.html

    As others have already mentioned, California state officials (who are administrative branch) are not prevented from applying Walker’s ruling.

    (P.S., to point out how bizarre things would be if Article III, Section 3.5 were applied in any other way…you said in your article:

    But apparently only an appellate court’s decision on unconstitutionality is decisive for California law. So the trial court’s decision may apply to the specific people involved in the case, but not to California generally.

    But if it were the case that only an appellate court’s decision on unconstitutionality were decisive for California law, then the trial court’s decision would not even apply apply to the specific people involved in this case. It would basically be saying that trial courts don’t count when it comes to judicial review in California. (That, BTW, is what the Breitbart link is arguing — that *every* agency in California is required to regard Prop 8 as binding law.) In the Fenske case that I linked above, the appellant seriously tried to argue that people should be allowed to bypass the trial court level and go directly to an appellate court, based on that sort of reading.

  24. SilverRain on June 28, 2013 at 6:42 am

    Agreed, the definition of harm IRS relative. If the legalization of same-sex marriage means that I, as a business owner, am forced to provide business for something I find morally wrong, I certainly am harmed. If it means that I am not allowed to teach my children the beliefs I hold dear, I am harmed. If my home our business is ransacked because i mention my political stance on something, i am harmed.

    The list can go on of ways that people who do not support gay marriage are already being harmed…and this is just the beginning. When it gets worse, there will no legal redress for this harm.

    You, Lorian, have expressed in other places that you think this harm is perfectly acceptable. I would be the first to put myself in danger to defend your right to behave and act as you find right, even if I don’t agree with you. I know, because I have done such things before. And yet, supporters of gay marriage often revel in the opportunity to force others to act against their moral beliefs. This is what I find chilling, and a huge part of why I dropped support for gay marriage since I last voted on it.

  25. Jax on June 28, 2013 at 9:09 am

    Lorian,

    The only part of my statement that was paraphrasing Oaks was this part, “the entire legal code is based in regulating morality”. The part following “I see no reason it shouldn’t codify mine” was entirely mine.

    His quote was actually this:

    Similarly, some reach the pro-choice position by saying we should not legislate morality. Those who take this position should realize that the law of crimes legislates nothing but morality. Should we repeal all laws with a moral basis so that our government will not punish any choices some persons consider immoral? Such an action would wipe out virtually all of the laws against crimes.

    His entire talk “Weightier Matters” can be found here: http://www.lds.org/liahona/2000/03/weightier-matters?lang=eng (still waiting on someone to give me a link to how I can link this into one word… )

    So, acknowledging his claim that legislating morality is all we really do, I see set forth the statement that if that if we are codifying someone’s morals, I see no reason we shouldn’t codify mine!

    Harm by SSM? http://www.katu.com/news/business/Did-a-baker-break-the-law-when-denying-service-to-same-sex-couple-189450071.html

    Here is the real-life example that SilverRain makes in #28.

  26. Jax on June 28, 2013 at 9:15 am

    Elder Oaks talk here

    Woohoo…Google works!

  27. jimbob on June 28, 2013 at 10:51 am

    Add me to the list of people who found the manner in which Prop. 8 died troublesome. And to the extent it matters, I thought DOMA should die, and am at least ambivalent towards Prop. 8. Essentially, California engaged in a bait and switch. It basically said to its citizens, “Yes, you can make law, but what we won’t tell you is that if we don’t like that law, we’ll just refuse to enforce or defend it.”

    Take that out of the divisive gay marriage context and ask yourself if you’d be okay with it on another issue. In fact, let’s pick a more traditional leftist issue, say, legalization of marijuana. Washington voters allowed that last year. What if the federal government decided that it didn’t like that law (which is a real possibility) and brought court proceedings against Washington to enjoin it, but that the state of Washington, because its governor doesn’t like recreational use of marijuana, decided not to fight that fight and simply rolled over. And when some cannabis-loving citizens stood up to defend that law because their government wouldn’t, the court told them to go home. If that strikes you as problematic, then what happened in California should too, regardless of where you fall on the gay marriage issue.

    I appreciate the need for standing and an actual case or controversy, probably more than most, since it impacts my daily life. But this is a chickensh*t move by California which I can’t imagine that the left-leaning members of SCOTUS would otherwise be okay with but for the substantive issue behind it.

  28. Heather on June 28, 2013 at 12:22 pm

    Jax:

    I agree with your premise (“the entire legal code is based in regulating morality”). But there’s a pretty big gap between that premise and your conclusion (“I see no reason it shouldn’t codify mine”). Here’s why. We live in a multicultural society. Different people have different views on morality.

    One response is that everyone should try to enact their own view of morality. If a majority disapproves of polygamy, it should be illegal. Same thing if a majority disapproves of gay marriage. But this creates a couple of problems. First, restrictive moral laws impose harms on others — whether they be Mormons in the 1800s or gays today. And relgious moral views are particularly harmful to public unity and discourse. It’s quite difficult to convince someone that X is wrong if your objection is based solely on the belief that your God (who the other person doesn’t accept) condemns X.

    My response is different: we should enact only those moral principles that receive near univeral acceptance. That’s why I like Locke’s harm principle. Atheists, Christians, and Muslism alike agree that we shouldn’t harm others. And this principle is open to reason and discussion; it doesn’t start from the unprovable claim that God condemns X. So it works well in a multicultural society.

  29. Jax on June 28, 2013 at 12:34 pm

    Heather,

    What about principles that HAD near universal acceptance, but have changed? Do we then destroy those pre-existing statutes?

    What about when there was near-universal acceptance that two men or two women didn’t equal a marriage? Now that the acceptance has changed, we change the rules?

    So say a large enough group of Muslims move in and now it is not “near-universal” that honor killings are unacceptable? Do we then change the law to allow them because their is dispute?

    Someone’s morals are codified into law… why should I not want it to codify mine?

    If we want a set of rule with near-universal acceptance, a multi-cultural society would be the last thing you want, because there would be disagreement on SOOO many more issues then in a homogenous group.

  30. Heather on June 28, 2013 at 1:03 pm

    “Someone’s morals are codified into law… why should I not want it to codify mine?”

    I tried my best to answer this question: we should recognize that other people have different moral views, so forcing those people to follow our views is harmful to them. (As an aside, I question whether Mormon doctrine allows us to codify our views while ignoring the views of others. See D&C 134:9.)

    Let me take another crack at it: your argument is exactly what led to persecution against Mormons in the late 1800s. Exactly. I’m arguing that you should give up the right to impose your idiosyncratic views on others in exchange for others giving up the right to impose their views on you.

  31. Jax on June 28, 2013 at 1:22 pm

    Heather…

    in exchange for others giving up the right to impose their views on you.

    That isn’t the option though… SOMEONE’S morals are going to be written into law. Why shouldn’t I try to make it mine? In argument, you’re telling me that YOUR morals should be the rule: that no one should tell others how to act – Tolerance is the moral you are trying to enforce. You think it is right that no one force their views on others, and so you try to force tolerance on me and others (Not hard since I largely agree).

    So, if you don’t want to force your views on others, then your fine with Muslim communities carrying out honor-killings, right? Because you wouldn’t want to force your values on them, right? Are you going to be tolerant of their customs and morals? Or do you force them to be tolerant of what they perceive to be mortal offences? Someone’s morals will be law, and I assume you want it to be yours – tolerance of the perceived offenses and no honor-killings.

  32. Heather on June 28, 2013 at 1:42 pm

    Here’s the confusion: there’s a big difference between my moral views and the moral views that I think society should enact. My moral views are consistent with the Gospel (at least I think they are), but I think society should adopt something like Locke’s harm principle (which is much more permissive than the Gospel). So I’m saying people should be more permissive in the moral views they try to impose on others.

  33. Jax on June 28, 2013 at 2:01 pm

    Heather,

    You should go check out that talk by Elder Oaks as well here

    Here is the paragraph BEFORE the one I quoted above…

    If we say we are anti-abortion in our personal life but pro-choice in public policy, we are saying that we will not use our influence to establish public policies that encourage righteous choices on matters God’s servants have defined as serious sins. I urge Latter-day Saints who have taken that position to ask themselves which other grievous sins should be decriminalized or smiled on by the law due to this theory that persons should not be hampered in their choices. Should we decriminalize or lighten the legal consequences of child abuse? of cruelty to animals? of pollution? of fraud? of fathers who choose to abandon their families for greater freedom or convenience?

    Similarly, some reach the pro-choice position by saying we should not legislate morality. Those who take this position should realize that the law of crimes legislates nothing but morality. Should we repeal all laws with a moral basis so that our government will not punish any choices some persons consider immoral? Such an action would wipe out virtually all of the laws against crimes.

    Saying you don’t hold others to your values sounds fine, it just means that THEIR morals are codified in law instead of yours. Why should that be? Why not have yours codified in law instead? Failing to stand up for God declared standards is one way to prove we are NOT His disciple, IMHO.

  34. Heather on June 28, 2013 at 2:19 pm

    “Failing to stand up for God declared standards is one way to prove we are NOT His disciple, IMHO.”

    Do you think we should ban alcohol or tobacco or coffee or tea? Do you think we should repeal the First Amendment so that we can ban pornography? Should we outlaw fornication?

    Perhaps you think we should. But if not, haven’t you just “prove[d]” by your own argument that you “are NOT His disciple.” Seems like a silly argument.

    And Elder Oaks’s parade-of-horribles doesn’t pose a problem to my views. The harm principle would condemn everything on his list (though others might disagree on how it applies to abortion and animal cruelty).

  35. Heather on June 28, 2013 at 2:23 pm

    *I keep saying Locke’s harm principle but it’s really Mill’s.

  36. S on June 28, 2013 at 2:33 pm

    Sounds like CA’s laws need to be changed so that officials are prosecuted for malfeasance if they don’t proactively enforce and/or defend ballot initiates that are approved by the people.

  37. stephenhardy on June 28, 2013 at 2:34 pm

    I don’t believe that we ought to have any one person’s morality written into law. (mine or yours) Rather we write into law those values which most (never all… that’s not possible) agree to.

    Thus we believe in the importance of protecting life. Therefore:

    Murder is illegal
    Manslaughter is illegal
    Reckless behavior is illegal (Drunk driving, fast driving, etc)
    Child neglect/abuse is illegal
    Elder abuse is illegal.
    Late-term abortions are illegal.

    These aren’t illegal because I think they are immoral. They are illegal because we think they are immoral. These aren’t the law because I have, through deft political moves or dictatorial fiat, exercized my will over the masses. Rather the vast majority of citizens agree that such things are immoral and shouldn’t be tolerated.

    We can’t find common ground on early-term abortion as a society, so we have a hodge-podge set of laws which may vary from one region to another. There will continue to be tension about this until society can agree on some essential principle. Apparently slavery was tolerated by some, hated by some, encouraged by some, and thus in that setting is proved difficult to ban by legislature. There was, therefore, a hodge-podge set of laws around it, which varied from one region to another. Today we have mostly all (never all… that seems impossible) agreed that slavery is illegal, sowe now have laws that reflect that.

    So my opinion is that we ought to spend more time explaining why we think something is immoral, and if many agree with us we may eventually see laws enacted that reflect that societal norm.

  38. Derek on June 28, 2013 at 2:35 pm

    If the First Amendment was inspired, than someone who wants to make same-sex marriage illegal simply because “God said so” is not His disciple.

  39. Lorian on June 28, 2013 at 3:06 pm

    SilverRain #24 –

    If the legalization of same-sex marriage means that I, as a business owner, am forced to provide business for something I find morally wrong, I certainly am harmed.

    Business owners are required to provide service to people they consider immoral all the time. Wedding vendors cannot refuse service to interracial couples. Hotels can’t refuse service to atheists or unmarried couples. Jewish delis have to serve Muslims. That’s what “non-discrimination in public accommodations” means. You don’t get to enforce your personal morality on the people around you by refusing to serve them in your restaurant or store or business just because you disagree with who they are or how they live their life.

    If it means that I am not allowed to teach my children the beliefs I hold dear, I am harmed.

    No one is stopping you from teaching your children your beliefs, SilverRain! That’s hyperbole. No one can stop you from teaching your kids that “gay is bad,” or telling them you’ll be disappointed in them if they turn out to be gay, or telling them “Two women shouldn’t get married.” Lots of people still teach their kids that it’s bad to marry outside your race. KKK members still take their kids to KKK campouts and picnics, and send them to white supremacy training. If they can get away with that, I don’t think anyone will stop you from telling your kids that it’s bad to be gay.

    If my home our business is ransacked because i mention my political stance on something, i am harmed.

    Okay, if your last statement was hyperbolic, this one is waaaaaaaaaaaaaaaay over the top. When was your home or business ever ransacked for mentioning your political stance to anyone? And how is that related to whether gay people should have the legal right to civil marriage? Really? A harm that hasn’t even taken place and which cannot be remotely blamed on the gay couples who have or will get married?

    Besides which, if someone vandalized your home or place of business, you would have every right to prosecute them to the full extent of the law. There is nothing about allowing gay couples to marry which gives anyone permission to vandalize your home or office at will and not be prosecuted for doing so. That’s really, really reaching, SilverRain.

    And the bad actions of an individual do not in any way negate the rights of a group. If they did, then it would follow that, because people rioted in the streets in Selma, AL, this proves that there is harm in allowing black people the right to vote, and therefore they should be denied civil rights. Because someone who is purportedly a Muslim committed an act of violence against someone who was Jewish in some other city or state or country, Muslims are bad and cause harm and don’t deserve civil rights. No, sorry, it doesn’t work that way.

    The list can go on of ways that people who do not support gay marriage are already being harmed…and this is just the beginning.

    No, SilverRain, I don’t think you understand the concept of legal harm. Legal harm is something that happens to someone as a direct result of the action being examined. It’s not some nebulous future predicted event which might or might not take place. It’s not, “God will rain down fire on all of us!” or “Society as we know it will come to an end!” It’s not even, “People will get mad at me for continuing to be prejudiced against them when they have legal rights.” That’s not a harm that equal marriage is causing to you.

    When it gets worse, there will no legal redress for this harm.

    There’s no legal redress for this “harm” right now, because you aren’t being harmed.

    You, Lorian, have expressed in other places that you think this harm is perfectly acceptable.

    No, I haven’t, because you haven’t presented any actual harm, SilverRain. People getting mad at you is not a “harm.” You still have the right to teach your children to be prejudiced against gays. No one has vandalized your home or business, and if they did, you would have every right to prosecute them to the fullest extent of the law.

    I would be the first to put myself in danger to defend your right to behave and act as you find right, even if I don’t agree with you. I know, because I have done such things before. And yet, supporters of gay marriage often revel in the opportunity to force others to act against their moral beliefs. This is what I find chilling, and a huge part of why I dropped support for gay marriage since I last voted on it.

    This is a hugely manipulative statement that I often hear from those who campaign against equal rights for others: “Yeah, I USED to support your cause, but then I talked to people like YOU, and I don’t like YOU, and so now I don’t support the cause of equal rights anymore. See what you did?” It’s very passive-aggressive. Either you support equal rights for all citizens, or you don’t. Don’t blame it on me or anyone else. It’s your choice — take responsibility for it. No one has vandalized your home. If you ever protect me from attack, thanks very much, but thus far in our contacts of the past 5 years, it’s been mostly about you telling me why my family doesn’t deserve the same rights as yours, not about you defending me from anyone else. You claim to support my right to live my life the way I choose, but you don’t support my children’s rights to enjoy the same protections as your children enjoy.

    SilverRain, you claim that I’ve done something to you, you say that “people who support gay rights revel in forcing other people to do things that are against their moral beliefs!” but all I’ve done is exist, and ask that I and my family be treated as equal citizens under the law. It is my existence and that of my family, and our desire to share equally in the civil rights provided to other citizens of this country which you find threatening to the point where you make up non-existent “harms” to yourself, which you claim will result from my being married to my wife. I wish you could see how this sounds. I really do.

  40. Lorian on June 28, 2013 at 3:24 pm

    Jax, this is why individual concepts of “morality” or religious definitions of “morality” are not the basis of our system of laws. Harm IS. Your example of honor killings becoming legal could not happen under our constitution as it currently stands, because, even if the majority of people in the country were Muslim, our laws are still based, not on the religion of the dominant culture, but upon the concept of legal, provable harm, and the protection of individual human and civil rights.

    Honor killing deprives an individual human being, the victim, of her right to life. Our system of laws does not place that right — to deprive another human being of his or her right to continue living, into the hands of the citizenry, except in cases where another person’s life is being threatened by the person who is killed. We have the right to self-defense at a level consistent with the level of threat presented to us (we can’t shoot someone for hitting us over the head with a feather). We don’t have the right to kill someone else because they have violated our moral beliefs, or because they have stolen from us, or even because they have killed someone we love (unless they are in the act of killing a person at the time when we intervene and kill them to stop them.

    So, yeah, your argument about a Muslim majority making honor killings legal? It’s one of the very best arguments for *retaining* the separation between church and state, and not allowing our system of laws to be dictated on the basis of a particular religion’s or individual’s views of “what is moral.”

  41. Jax on June 28, 2013 at 3:39 pm

    When was your home or business ever ransacked for mentioning your political stance to anyone?

    Well, it happens ALOT Lorian, you just choose to ignore it I guess. Probably not your fault though really. Most news organizations pass on stories when conservatives are being persecuted/intimidated/bullied. But here is someone who DID have their house/yard invaded because of political stance. Many similar cases with businesses and homes are invaded. They are SilverRain personally, as far as I know, but it does happen. SilverRain isn’t WAAAAY over the top.

    And you might think it is “paranoid”, but when even the President comes out and says, “We’ll punish our enemies” like he HAS said ( here ). Is it paranoid to think he and his allies will do what they say they will do? And punish people who stand against them on political issues? You don’t think there is some harm there?

    You can’t tell us that we can’t anticipate harm, when the political leader of the movement has said he will “punish” those who don’t side with him. It’s not paranoia, it is reality!

  42. Jax on June 28, 2013 at 3:42 pm

    Sorry… type “they AREN’T SilverRain personally, as far as I know”

  43. Lorian on June 28, 2013 at 3:49 pm

    stephenhardy #37 –

    I think we are basically in agreement, but I would posit that the concept of “harm” is a better explanation for the ideas you present than is the concept of “shared morality.” Yes, there is shared morality at play, but it is a shared morality that is based in the idea that we don’t get to harm others, and that individual rights are protected up to the point where they begin to infringe upon the rights of other individuals.

    Thus, your list of “murder, manslaughter, reckless behavior (drunk driving, fast driving, etc.), child neglect/abuse, elder abuse,
    late-term abortions,” is not, as you say, “illegal because I think they are immoral,” but they also aren’t “illegal because WE think they are immoral.” They are illegal because we, as a society, recognize that when someone murders someone, they deprive that person of the right to remain alive. They cause unjustifiable harm. When someone beats a child or elder, they harm that person and deprive them of their rights to the integrity of their own body. When someone steals from someone or crashes into their car, they deprive that person of their right to ownership of property. They cause clear, demonstrable harm to the other person.

    That’s why we’ve gotten rid of (in most cases) laws where no actual harm can be proven — laws against miscegenation, laws against playing cards on a Sunday, laws against performing oral sex on another person, laws which attempted to control what kind of sex spouses can have in the privacy of their home, laws which deny access to public accommodations on the basis of race, religion, gender, etc. Not only do these laws not prevent people from harming one another; some of them actually *cause* harm to others.

    We can’t find common ground on early-term abortion as a society, so we have a hodge-podge set of laws which may vary from one region to another. There will continue to be tension about this until society can agree on some essential principle.

    Abortion is a fairly unique case in which the rights of one individual to the integrity and control of her own bodily functions are being weighed against the rights of another (possibly) individual to remain alive. The questions surround the definition of “alive” and “individual” and “bodily integrity” and numerous other concepts. Granting that a fetus that is unable to maintain its own bodily functions outside of the uterus is a full human being with a right to life which outweighs the mother’s right to govern her own body, to protect her own health (and possibly her own life), and places her body at the sole use and discretion of another person for a period of 9 months is a balancing act of what it means to cause “harm” and where the rights of one individual end and another being.

    Apparently slavery was tolerated by some, hated by some, encouraged by some, and thus in that setting is proved difficult to ban by legislature. There was, therefore, a hodge-podge set of laws around it, which varied from one region to another. Today we have mostly all (never all… that seems impossible) agreed that slavery is illegal, sowe now have laws that reflect that.

    Legal slavery rested upon the concept that a black person was not a full human being with the same human rights accorded to a white person, and therefore, was not “harmed” by being treated as livestock. Cattle don’t have the right to defy ownership. Black persons were treated, for most legal purposes, as if they had the same rights as cattle.

    Where moral consensus came into the question was when people came to the realization that black people were as fully human as white people, and that it was therefore immoral to withhold from them the basic human rights enjoyed by other human beings. Once legally recognized as human beings, their rights to life, liberty and the pursuit of happiness had to be given equal weight to those of white persons, and it became legally unjustifiable to continue holding them in slavery, because to do so was to cause harm through the deprivation of basic human rights.

    So, yes, morality comes into the question, but the laws, themselves, are based upon protecting the rights of individuals, and upon issues of who is being harmed by an action. If no one is harmed, then there is no legal justification for prohibiting the action. And that “harm” cannot be based solely upon the claim that the action being prohibited is “immoral.” Otherwise it becomes far too easy for those in power to simply declare that anything they don’t like or prefer is therefore, “immoral,” and must be forbidden. I don’t like chocolate pudding. Chocolate pudding is immoral. Chocolate pudding is forbidden. I don’t like redheads. Redheads are immoral. Redheads must be put to death. I don’t like Jews/Muslims/Christians/Atheists. Jews/Muslims/Christians/Atheists are immoral. Jews/Muslims/Christians/Atheists must be put to death.

  44. S on June 28, 2013 at 3:51 pm

    As has been pointed out elsewhere — Black’s Law Dictionary – “License – the permission by competent authority to do an act which, without such permission, would be illegal.” To get married, one has to obtain a marriage license. Therefore, marriage is not a “right.” It’s a privilege granted by the state. The supreme court did not in any way say states can’t regulate marriage. We’ll never know how the court may have ruled had CA officials stayed in the case as parties so the procedural issue of standing had not been a factor. At it is now, we have one district court in the state of CA that says Prop 8 violates certain clauses of the Constitution. There have been many occasions where district courts have taken differing positions on legal issues, which in turn usually results in a federal appellate court taking the issue up for decision. But as it stands now, a win is a win, no matter how it’s achieved. It’s a shame the District Court, and eventually the Nineth Circuit, allowed to petitioners to intervene. The courts could have saved everyone a whole lot of time and money by cutting them off in the first place.

  45. Lorian on June 28, 2013 at 3:52 pm

    Jax #41 – Again, individual examples of a person having their home invaded or vandalized is not a demonstration that equal marriage “harms” individuals or society as a whole, anymore than a progressive person’s home being invaded or vandalized is proof that the Tea Party “harms” individuals or society as a whole. It just doesn’t work that way, sorry.

  46. Lorian on June 28, 2013 at 3:59 pm

    S #44 –

    To get married, one has to obtain a marriage license. Therefore, marriage is not a “right.” It’s a privilege granted by the state.

    Apparently, Chief Justice Earl Warren of the United States Supreme Court disagrees with you, S, since in his opinion for the unanimous Supreme Court decision in Loving v. Virginia stated the following:

    Marriage is one of the “basic civil rights of man,”

  47. SilverRain on June 28, 2013 at 4:00 pm

    I’m not way over the top, Lorian. Those things have happened, and some of them by the laws of the land. That is legal harm. It frightens me to think that I would be legally forced to provide my professional services to an event I don’t agree with. I hope it would also frighten you, though I can fully understand why you don’t want to see the potential (and actuality) of harm towards those who disagree with you. I probably wouldn’t either, to be honest. It’s hard to weigh one’s own system of values against another’s.

    For what it is worth, although those developing legal trends are what inspired me to reexamine my stance, they are not why I actually changed it. That was out of a political and social belief of what the purpose of state-sanctioned marriage should be. Fortunately, I live in America and so far have a right to vote my according to the dictates of my conscience. (As do you, for which I am also glad!)

  48. Mike S on June 28, 2013 at 4:10 pm

    Ben:

    I know how I feel, but am curious as to your opinion on the following:

    Even if a majority of American citizens support the right for two people of the same-sex to get married, and even if it is eventually legalized in all 50 states, gay marriage will always represent a very small minority of marriages, and “traditional marriage” will always be in the majority. So, two questions:

    1) Do you see the role of the Federal government primarily to promote the ideals of the majority, or to protect the rights of the minority?

    2) Given the statement from the Newsroom (“Many Californians will wonder if there is something fundamentally wrong when their government will not defend or protect a popular vote that reflects the views of a majority of their citizens“), does this mean the government was right in fighting polygamy like it did in our history, since it didn’t “reflect the views of a majority”?

  49. Lorian on June 28, 2013 at 4:13 pm

    No, SilverRain. The only state-sanctioned things that have happened that are on your list are people who provide a public service or accommodation to members of the public at large being compelled to provide that same service — no other, just the service they normally provide — to all members of the public who request the provision of that service, rather than being able to refuse service to someone because they are black or female or Jewish or disabled.

    Discrimination is wrong. I don’t have a problem with laws which prohibit discrimination, and I find it shocking that others do, frankly.

    And very few people have yet been compelled not to discriminate against gay people, because only about 20 states even have antidiscrimination laws which protect on the basis of sexual orientation. The federal government can’t even pass a law which protects gay people from employment discrimination, even though they’ve been trying repeatedly for the past 20 years. It’s about time THAT happened, too.

    So, no, SilverRain, I don’t find this a scary problem. I find it appalling that gay people AREN’T protected from this kind of discrimination, and even more appalling that you think they shouldn’t be. You claim in your earlier post that you’d “be the first” to step up and defend my right to be who I am and live according to my own conscience, and yet you think it’s “scary” when businesses are not permitted to refuse service to people because they are black or Jewish or gay. That’s not being the first to step up and defend my rights, SilverRain. It’s not.

  50. Jax on June 28, 2013 at 4:29 pm

    Business owners are required to provide service to people they consider immoral all the time. Wedding vendors cannot refuse service to interracial couples. Hotels can’t refuse service to atheists or unmarried couples. Jewish delis have to serve Muslims. That’s what “non-discrimination in public accommodations” means. You don’t get to enforce your personal morality on the people around you by refusing to serve them in your restaurant or store or business just because you disagree with who they are or how they live their life.

    This entire paragraph bothers me. It is perfectly okay for public officials to decide on a case by case basis to punish poor behavior (pulling over car A, but not B; prosecuting A and not B) because of public resources and other very valid reasons. This is just fine with me. But why does the same basic premise not apply to private citizens who are (onstensibly) “free”?

    Why can’t a business owner decide, using whatever criteria they deem best, decide who, and who not, to provide service to? Lorian claims that, “People getting mad at you is not a “harm.”’ Likewise then, people not wanting to serve you isn’t harm either! No damage is done, except maybe you’re hurt feelings. If “being discriminated against” is harm, then so is “being required to serve people I don’t like”. It’s not like this couple can’t get a wedding cake somewhere else. But the baker is at risk of thousands of dollars, a business license, jail time? Who is suffering the real harm here again?

    For heaven’s sake, we allow people out of the armed forces for their religious objections, but somehow it would be unconscionable to allow them to use the same argument for not making a cake? Totally insane! And completely inconsistent!!

  51. Steve Smith on June 28, 2013 at 4:31 pm

    Wait hold on a minute there, S, are you saying that because I need a license to carry a gun with me means that I don’t have the right to bear arms? Are you saying that because I need a license to assemble a protest or parade in some places that I don’t have the right of assembly?

    You know why states require a license for people to marry? 1) Because it is costly to oversee and enforce marriage laws, which is a responsibility of the government, not individual communities (no marriage without some sort of enforcing governing presence). 2) Because you have to meet certain requirements to be married, and the government needs to make sure that the two parties involved in each marriage are meeting those requirements (consent, being of age, not in other marriage contracts, not of the same nuclear family). When it is clear that all requirements are met, the state is required by law to grant the couple a marriage license, even if there is a disapproving family member or friend, or even if the person granting the license disapproves. So yes, the right of an 80-year-old billionaire to a girl who barely turned 18 is protected by the state, no matter how many people disapprove of the marriage. But marriage is a right. And you should have the right to disapprove of gay marriages, just not deny them.

  52. Steve Smith on June 28, 2013 at 4:48 pm

    “Why can’t a business owner decide, using whatever criteria they deem best, decide who, and who not, to provide service to?”

    Then we could have racial segregation all over again. During the 1950s and 1960s the courts had to force white southerners who owned businesses to service blacks because it was the prevailing belief of southern business owners that blacks and whites were to be ‘separate but equal’ and the prevailing social norm of white southern business owners was to compel them to patronize services provided by other blacks (which generally lacked the financial support that white-owned businesses had). Sure there were a fair amount of white-owned businesses that thought that segregation was wrong, but often if they were caught servicing blacks, they were boycotted by other whites. And no, the blacks who were denied service couldn’t just patronize the business next door, because they would also deny them service based on their race.

    Suppose there were a cultural trend among business owners in a large territory where you lived that it was wrong to service people named Jax, because they thought it was a silly name. Suppose they really enforced this business policy and required people to show IDs upon purchase. In order to be serviced the people named Jax had to travel long and far, and if they were serviced, it had to be underground, lest the Jax-servicing business-owner incur the wrath of the widespread Jax-hating mobs. Would that practice be just simply because it was a cultural trend practiced by a majority? To whom would you run for recourse?

  53. Lorian on June 28, 2013 at 5:14 pm

    Steve nailed it. If we permit businesses to refuse service to customers on the basis of innate characteristics (or religious beliefs), then a town in which the majority of people hate Mormons can refuse service to all Mormon clients in an attempt to drive them out of town. If a bunch of Jewish people or Muslim people or Baptist people or Japanese people move to your city and buy up the businesses, and decide they don’t like white people or Mormon people living there, they can simply stop waiting on you in restaurants and stores, refuse to hire you for a job, refuse to pick up your trash on trash day, refuse to come put out the fire when your house burns down — basically, make it impossible for you to live in your own home anymore and force you to move away to some other city where, hopefully, you can find a more accepting community (maybe — this can be pretty questionable for people who truly face discrimination, like gays, blacks, and others, who may be forced to seek out “ghetto” communities with larger populations of people who are like them).

    Your former town can even band together and refuse to allow you to be paid a fair price when you try to sell your home to move away, so that you lose any financial investment you had in it, and cannot afford to buy a new home when you finally give up and move away.

    I’m thinking you’ve never really experienced discrimination. You might want to read some books about what it was like for black people living in the South in much of the 20th century.

  54. Jax on June 28, 2013 at 5:30 pm

    Would that practice be just simply because it was a cultural trend practiced by a majority? To whom would you run for recourse?

    What would be/is unjust is trying to force your standards on others, as your argument goes, right? Why doesn’t that hold for business owners? Isn’t requiring/forcing them into certain actions with their own private property and time unjust?

    Would it be unjust not to serve me because of my name? NO!!!!!!!!!! They should be able to serve or not serve me as they choose!
    I wouldn’t run for recourse because I believe they should be free to do so!!!
    I want to be free to choose my actions, and leave them free to choose theirs. I don’t want the to assume the right or responsibility of choosing their actions for them. I don’t want to compel anyone else to do anything for me. I’d rather use ” persuasion, by long-suffering, by gentleness and meekness, and by love unfeigned; by kindness,…” I have no right to compel anyone to use their time or resources on my behalf. And neither do you.

    But I’m arguing against a brick wall, I know. Freedom and individual liberty/accountability are LONG ago discarded in this country. The whole idea just seems crazy to many of you. Will some injustice exist with freedom? Yes. Will wrongs be committed? Yes. Should we scrap freedom to fix it? No, but we already have!

    And that is the point of the OP in a round about way. This is one more small step to separate the people from their gov’t. It isn’t the apocalyptic straw the breaks the camels back, but it is one more pace further along the slippery slope to complete gov’t control.

  55. Jax on June 28, 2013 at 5:33 pm

    LOL…

    If we permit businesses to refuse service to customers on the basis of innate characteristics (or religious beliefs), then a town in which the majority of people hate Mormons can refuse service to all Mormon clients in an attempt to drive them out of town. If a bunch of Jewish people or Muslim people or Baptist people or Japanese people move to your city and buy up the businesses, and decide they don’t like white people or Mormon people living there, they can simply stop waiting on you in restaurants and stores, refuse to hire you for a job, refuse to pick up your trash on trash day, refuse to come put out the fire when your house burns down —

    look some of those imagines wrongs Lorian was so adamant SilverRain couldn’t use as arguments!

  56. Lorian on June 28, 2013 at 5:55 pm

    Jax #54 – So what you’re saying, Jax, is that you support the legality of Jim Crow and other racial segregation laws? You support Woolworth lunch counter’s right to seat and serve black people? You believe that it’s just fine for a hotel to turn away a black person?

  57. Steve Smith on June 28, 2013 at 6:01 pm

    OK Jax, so you would then agree with the statement that segregation was perfectly just and that it was injustice of the court to impose their standard of equal treatment towards all races on white business-owners. Bear in mind that segregation came about because of a racist cultural trend among southern whites not because of a select few highfalutin governing officials trying to impose their will on the people. Sure these racist cultural trends got written into law and were defended by elected governing officials as well as local courts, but the racist cultural trend held by the majority preceded legislation.

    You’ve been bitten by radical Utopian libertarian ideas of justice to the extent that they’ve possessed your soul. There is no such thing as absolute freedom. You don’t subject your six kids to the standards that you and your wife impose? Heaven forbid you’ve ever compelled your kids to go to church with you or do anything else. If you have then you’re imposing your standards on them. You are very vocal in your opinions and do not back down even in the face of pure reasoning. The problem is that you’re not very good at citing evidence to back up your opinions. And you consistently take extreme positions simply to not have to make the bitter admission that you were wrong about something. This shows that raw emotion has a far greater tendency to drive your thought process than reasoning.

  58. Jax on June 28, 2013 at 6:09 pm

    Lorian,

    No. I don’t think we can pass laws to MANDATE businesses treat anyone as inferior. I don’t think we should mandate their customer service at all! If they want to drive away customers…so be it! Leave the freedom to the people.

    I’m Mormon. If I start a business and want to hire only Mormons I think I should be allowed. If I seek a job and am refused by a private business because I am a Mormon, I think they should be allowed – it is THEIR business after all.

    I assume you’ll be singing the same tune when the polygamists come out and start using it, right? Why should they be deprived of the “civil rights” of legal marriage to whomever they choose? Otherwise they’ll be “forced to seek out “ghetto” communities with larger populations of people who are like them”. Oh! Wait! They are already! I’m sure you’ll be eager to correct that.

    I disagree with your argument, but I hope you at least have the intellectual honesty to apply it to polygamists and poly-amorists as well.

  59. Jax on June 28, 2013 at 6:16 pm

    The problem is that you’re not very good at citing evidence to back up your opinions.

    I back up my claims with evidence, as you admit. But I have a problem with “pure reasoning”??

    I’m calling for personal freedom and accountability. The fact that you can calmly say that freedom is an “extreme position” is a ringing indictment against you Steve, not me. To quote Lorian

    I wish you could see how this sounds. I really do.

  60. Jax on June 28, 2013 at 6:19 pm

    Steve,

    I read your post originally as saying “You’re very good at citing”

    I misread and couldn’t understand how you said that was a “problem”… which then makes my last comment quite out of place.

    If you’ll back through my posts though you’ll see I’ve linked evidence to support my argument. Neither you nor Lorian have done the same.

    I do stand by the 2nd half of that last post… that freedom is not an “extreme position”… unless we are much worse off than even I have imagined.

  61. Steve Smith on June 28, 2013 at 6:27 pm

    OK, so lots of blacks rise in protest against social norms of white business-owners discriminating against them. They run to the courts for recourse against racist laws and norms calling them unjust. And the courts say, “sorry, but we have to protect the rights of business-owners to do as they please.” Blacks are collectively forced to either leave their southern homes for somewhere foreign and new or put up with a cultural system that makes them feel subhuman. The irony of it was that it took a strong government presence to enforce the unquestionable principle of business-owners being able to service whomever they pleased.

    Congratulations Jax, you implicitly support segregation and Jim Crow laws. Thanks for making it so easy to paint you as a rabid extremist. No one who is anyone agrees with you. Church leaders don’t agree with you. I bet you your wife doesn’t agree with you. And your kids when they grow up will think that you are a loony insane person.

  62. alice on June 28, 2013 at 6:29 pm

    The stay has already been lifted and at least one same sex marriage was conducted at 4:15PM Pacific time.

  63. Jax on June 28, 2013 at 7:03 pm

    Steve,

    Your mental gymnastics to make freedom out to sound “extreme” is admirable. I’m sure almost any university in the country would be proud to have you as an alumnist. If it’s easy for you to make paint freedom as the position of “a rabid extremist” then I’m sure you are welcome in either political party, where freedom has been unwelcome for quite a long time.

    As I said earlier, I resigned a long time ago that my side would lose the SSM fight. Why? Because your side long ago was able to paint your side as the one of “freedom to exercise our rights”, which is the winning argument. Unfortunately your argument isn’t “we want freedom to exercise our rights”, it is “we want to control how other people get to use theirs”.

    This has never been a civil rights issue. The law has been equally applied to all people… anyone was free to marry a person of the opposite sex; and everyone was prohibited from marrying someone of the same sex. There was no injustice, no unequal application of law. Every single person had the law applied to them in the same way. This has always been a fight to redefine a term (marriage) and a fight to force people (the opposite of freedom) to accept the new definition.

  64. Lorian on June 28, 2013 at 8:14 pm

    Jax, it’s pretty tough to deny that someone who supports segregated lunch counters and Jim Crow laws is a tad…well…extreme.

    And, yeah, don’t bother bringing up the old saw that “everyone has the same rights — they can marry any opposite-sex person they want to.” That’s like saying that “People in wheelchairs don’t need any ‘special rights!’ They can just use the same staircase everyone else uses!”

  65. Ben H on June 28, 2013 at 8:31 pm

    After about comment #27 this thread has basically left behind the question in OP, so I will limit my remarks.

    Mike S (#48), your (1) is really far afield from the OP, but my answer is “neither.” I think the primary role of the federal government is to govern national defense, foreign policy, and relations between the States (e.g. trade). The federal government is too far away, and governs too large and pluralistic a people, to do a good job of much else. It currently does all kinds of other things, but it does most of them rather badly, and I think it should stop.

    In general, I don’t think that the purpose of a democratic form of government is to promote the ideals of the majority. Rather, democracy is a mechanism to try to maintain a more reliable bead on the truth than other forms (hereditary monarchy, dictatorship, etc.) are likely to have, and to allow for citizens to participate in and have influence over their political lives, since agency and self-determination (within reason) are essential elements of a fully human mode of life. The hope, however, is that the majority are likely to be right about the moral truth more often than not, and more often than an entrenched aristocracy or what have you, whose power is likely to corrupt them. In our system, though, we have also enshrined certain rights in law which we think everyone (majority or minority) should enjoy, and (in theory) set those beyond the political process, on the assumption that we have already gotten those right and need to keep them out of reach of political fads and temptations.

    If you want to pursue this subject further, though, I probably won’t come along, because I have a lot to do, and it is a huge departure from the OP.

    As for (2), I think you have your eye on the wrong issue. This is not about majority or minority will. It is about democratic self-government, which in our system happens to be exercised to a large extent by voting, with the majority deciding the outcome of the vote. The people (both individually and collectively) fundamentally are the seat of political authority. We take the people’s political will to be expressed by a majority vote in many cases, namely those in which we think it is appropriate to put something up for a vote. On some issues, though, such as the issues in the Bill of Rights, we don’t put those up for a vote, because we think self-government requires that they not be subject to the will of the majority. So, majority or minority is not the point of either my post, or the Newsroom comment, as far as I interpret it.

    The majority versus minority issue seems to have taken over the discussion. Since it is tangentially related, so as long as people are behaving themselves I am content to let it go on, but it’s not the issue I am interested in here.

  66. Jax on June 28, 2013 at 8:52 pm

    Lorian,

    Its also more than a tad dishonest to say that someone who says they support personal freedom therefore supports Jim Crow laws, especially when they have come out and explicitly said that they don’t. In fact it is a flat out lie.

    But your mental gymnastics are as good as Steve’s. Freedom, and any description of it, terrifies you. You can’t even fathom it. Your both like the elephant in the circus that is controlled by a small rope. You’ve been conditioned for so long to abhor true freedom, and to condemn the very notion of it. And just as you say I’m free to teach my kids to hate, you are free to teach yours to shudder at the idea of freedom… and this nation will continue its slow march to Statism.

    At least the march will end soon… we’re almost there!

    Ben, thanks for starting the conversation…sorry it got so off topic.

  67. Ben Huff on June 28, 2013 at 9:13 pm

    Jax, I don’t mind if you pursue the discussion, and given where the discussion has gone, I appreciate your continuing to make the case for limited government; I was mostly saying that to explain why I’m not going to be commenting a lot myself on what’s been said.

  68. Ben Huff on June 28, 2013 at 9:20 pm

    Alice (#62), note that this was a couple that was involved in the original trial case. So, as far as the legal issues go, that is not very remarkable. As for whether couples not involved in the trial case will be able to marry, and when, that is a more complex question with several more shoes that will need to drop before we know just how it plays out.

    Lorian, do you approve of my news source this time? : )

  69. Lorian on June 29, 2013 at 12:43 am

    Ben #68 – Absolutely not. Nor does it make any statements which are nearly as controversial or questionable as your original source. ;)

  70. Lorian on June 29, 2013 at 12:54 am

    Jax, if you do not support laws which prohibit discrimination in the provision of public accommodations on the basis of race or other characteristics, then it stands to reason that you are, at least tacitly, supporting such actions as denial of service to black customers at the Woolworth’s lunch counter. If purveyors of public accommodations are to be perfectly and absolutely free to deny their services to anyone at any time for any reason, including simple, base prejudice, then white businesses in small southern towns were perfectly fine to refuse to serve black customers.

    When you argue for this viewpoint, you continually focus solely on the viewpoint of the service provider, and in your hurry to suggest that the only suffering will be on the part of the service provider who will supposedly face the wrath of the free market and be forced out of business by his shortsightedness, you blithely disregard the effects of strong societal prejudice, by way of which those who express that prejudice by directly harming the objects of the prejudice (i.e., the shopkeeper who refuses service to black persons) tend to be *rewarded* by their peers who share their prejudiced viewpoints, rather than punished by any action of the “free market.”

    For a pithy, well-documented and up-to-date example, see the case of Chick-fil-A, who after well-publicized discrimination towards gay and lesbian people was lauded in conservative religious circles and treated to days of lines out the door by those who approve of mistreatment of gays and lesbians and wished to affirm Chick-fil-A for their support of anti-gay causes.

    Sometimes free market pressure works to end discrimination. Sometimes it works to further it. I’d guess that in most cases where a popular vote would end up depriving a discriminated minority of basic civil rights, free market pressures are likely to affirm the same positions. Hence the reason that anti-discrimination laws which protect minorities from discrimination in the areas of housing, employment and public accommodations are the necessary teeth in any attempt to establish equal treatment for the minority. The majority will always mistreat unwelcome minorities if they are permitted to do so. Free market pressures only work to protect people from mistreatment if those people are not a member of a class which faces discrimination.

  71. Lorian on June 29, 2013 at 12:55 am

    Sorry, Ben. In my comment #69, I meant to say, “Absolutely!” I approve. I misread your question!

  72. Ben H on June 29, 2013 at 1:34 am

    No worries, Lorian; considering the source in question, I assumed you were joking!

  73. Lorian on June 29, 2013 at 1:36 am

    Well, I greatly prefer BBC News to, say, Faux…er…Fox. ;)

  74. Mike S on June 29, 2013 at 2:41 am

    #65: Ben

    Thanks for taking the time for a response. I didn’t mean to derail the OP, and was truly interested in your thoughts. Thanks again.

  75. Jax on June 30, 2013 at 3:42 pm

    Lorian,

    I’m sure you’ll be pleased to see that the Gov’t is protecting us all from this man’s rampant freedom… Thank God for big gov’t!

  76. Lorian on June 30, 2013 at 5:59 pm

    What man, Jax? I see a link but it goes nowhere.

  77. Jax on June 30, 2013 at 7:14 pm

    Sorry Lorian,

    try this one

  78. Lorian on June 30, 2013 at 7:54 pm

    Jax, I can’t see how that is remotely relevant to the current conversation, and I’m usually pretty good at chasing bunny trails. Sorry, not following you down this one.

  79. Jax on June 30, 2013 at 8:50 pm

    Lorian… I meant to add this outrageous waste as well.

  80. Jax on June 30, 2013 at 8:51 pm

    LOL…one showed up and the other is awaiting moderation… weird when they show up in the wrong order…

  81. palerobber on July 4, 2013 at 1:36 am

    hmm, according to this AP article of July 2, gay couples were seen to obtain marriage licenses in Los Angeles, Orange, Shasta, Tulare, Fresno, and Sacramento Counties.

    who could have ever predicted?

    don’t these county clerks read Breitbart?

  82. Steve Smith on July 4, 2013 at 2:30 am

    Well let’s see, a website set up by a now dead Rush Limbaugh devotee who had a reputation for creating faux scandals about people like Shirley Sherrod and community organizers like ACORN. Seems trustworthy to me.

  83. Jax on July 18, 2013 at 12:14 pm

    I think I might just come back here everytime I find a good article/evidence that more gov’t = bad for everyone…

    For instance, I loved this John Stossel article about letting the free market work; as well as this one about how gov’t has gotten so big we each commit about 3 felonies each day… which means the gov’t could arrest anyone of us as soon as it decides to – a situation ripe for abuse.