Category Archives: law

The Death of The Rule of Law in Alabama

From Public Discourse:

What is marriage law in Alabama now? What groups of people are entitled to receive a license? Are all of the marriages that have been contracted in the state of Alabama now unconstitutional? If not, then which ones are still valid? Must Alabama officials stop enforcing all of marriage’s legal protections for the rights of children, such as the presumption of paternity and presumptions of biological parental custody? After all, those incidents cannot apply equally to same-sex couples as to married couples.

What “rule of law” answers these fundamental questions? Judge Granade has now set herself up to be the chief probate officer in the state of Alabama. She has not defined marriage, and her failure to do so leaves state actors, especially probate judges, without a definition of the institution for which they are issuing state licenses. Worse, she has provided no legal standards—not even a limiting principle—to guide her administration of Alabama family law, which she has now taken upon herself. She will be rewriting the family laws of Alabama, piecemeal and arbitrarily, from her bench. Rather than conducting legislative hearings regarding the familial rights and duties related to the definition of marriage, Judge Granade will be conducting contempt proceedings in which she will decide on a case-by-case basis which actions of Alabama officials violate the Constitution and which do not.

If the rule of law is not already dead in Alabama, then it is seriously wounded indeed.

Read it all here

Federal Judge Violates Supreme Court Precedent

On Wednesday, yet another activist judge decided to impose his definition of marriage on an unwilling state, this time in Kentucky.

There’s so much nonsense in the ruling, like so many that have come before it, that it’s hard to know where to begin.

The federal “judge”, John Heyburn, dragged out all the same old canards. He repeated the completely nonsensical claim that marriage has nothing to do with procreation because not each and every married couple in America has a child (If all laws must correlate 100 percent with their aims in order to be rational, then we’re going to have to get rid of a lot more laws). And of course he invoked the phony Loving v. Virginia analogy.

But his most egregious move was to completely contradict the Supreme Court’s decision in United States v. Windsor, while purportedly using that very decision as the basis for his irrational ruling.

The Supreme Court’s Windsor decision was an incoherent mess, but that isn’t why Heyburn chose to directly contradict its holdings. No, he claimed to be following the precedent while violating it.

In short, the essential holding of Windsor was that it is the states’ prerogative to define marriage, not the federal government. Following the precedent would have required Heyburn (himself acting as part of the federal government) to uphold Kentucky’s legal definition of marriage. But the “judge” ruled just the opposite. He threw out the state’s definition, supposedly on the basis of Windsor. Eric Holder’s DOJ is doing the same thing. So we have federal officials overturning state definitions based on a Supreme Court ruling that said it’s the states, not the feds, who have the power to define marriage. It’s all really just Orwellian.

None of it is based on reason, on the law, or on the Constitution. The “progressive” elites of our society want marriage to be redefined, so they can preen about how “tolerant” and “progressive” they are, and so it shall be done, by any means necessary. Nothing like the rule of law or respect for representative government is going to stop these people.

Friendship Licenses

The government does not hand out “friendship” licenses, … They give out marriage licenses.

Read more…

The Legal Circus That Killed Proposition 8

The process that killed Prop 8 in California should concern anyone who cares about democracy and the rule of law. The cheaters won.

The Legal Circus That Killed Proposition 8

On Marriage, Inevitability Is a Choice We Can Reject

From the Heritage Foundation blog:

“…no one can deny that Americans’ support for marriage is not what it once was. This is largely because we have done an insufficient job of explaining what marriage is, why marriage matters, and what the consequences will be if we redefine marriage.

To fill this void, we have worked with our allies at the Alliance Defending Freedom, the Family Research Council, and the National Organization for Marriage to produce an easy to read pamphlet to explain why marriage matters in everyday language. Download a free e-book version today at TheMarriageFacts.com.”

Excellent Rebuttal to Marriage-Deniers

NY Times columnist Ross Douthat has a great rebuttal to the absurd charge that opponents of “same-sex marriage” invented a connection between marriage and procreation as a ploy to thwart the redefinition of marriage – Marriage, Procreation and Historical Amnesia

…of course that essential connection was assumed in Western law and culture long before gay marriage emerged as a controversy or a cause. You don’t have to look very hard to find quotes (like the ones collected in this Heritage Foundation brief) from jurists, scholars, anthropologists and others, writing in historical contexts entirely removed from the gay marriage debate, making the case that “the first purpose of matrimony, by the laws of nature and society, is procreation” (that’s a California Supreme Court ruling in 1859), describing the institution of marriage as one “founded in nature, but modified by civil society: the one directing man to continue and multiply his species, the other prescribing the manner in which that natural impulse must be confined and regulated” (that’s William Blackstone), and acknowledging that “it is through children alone that sexual relations become important to society, and worthy to be taken cognizance of by a legal institution” (that’s the well-known reactionary Bertrand Russell).

The primary reason advocates of redefining marriage must deny the obvious truth is simply that accepting the essential male-female nature of marriage makes their position incoherent at its roots. It’s as obvious as any fact can be that male-female sexual relationships play a role in society that is unique; it’s no accident or mere coincidence that human societies all over the world, throughout human history, have set apart male-female sexual relationships in both law and custom. But any acknowledgment of this simple truth opens the door to continue making legal distinctions, and so the truth must be subverted to ideology and political correctness.

But it also had to be denied for pragmatic reasons, because the first victories in redefining marriage were via the courts, and since the unique role of male-female unions in society easily and obviously provides a “rational basis” for unique treatment in the law, activist judges had to deny the obvious truth in order to leave themselves a thin veneer of legalese under which to impose their preferred policy. So, in Orwellian fashion, they simply declared the truth to be irrational and therefore illegal.

It’s impossible to know for certain, but had judges simply adhered to the written law they swore to uphold, to precedent, and to basic logic, they would have consistently ruled that there is plenty rational basis to define marriage as it’s always been defined, as male-female, and the movement to redefine marriage would have likely been stopped in its infancy years ago. Unfortunately, that’s not the legal system we live under now.

UPDATE: Part 2 of 3 – Culture, Class and the Decline of Marriage

UPDATE: Part 3 of 3 – Marriage and Historical Inevitability

Marriage = Biology (Not Bigotry)

Here is a really excellent video from the National Organization for Marriage, effectively making the case for society’s interest in promoting natural marriage over other types of relationships. Watch and forward:

The Loving Corollary to Godwin’s Law

Those who frequent comment threads at blogs and news sites will be familiar with Godwin’s Law. For the uninitiated, Godwin’s Law basically says that in any comment thread, it’s virtually certain that someone will eventually make an analogy to Hitler and/or the Nazis, no matter what the topic.

There’s a corollary in the debate over so-called “same-sex marriage”. In any discussion of the topic, it’s a virtual certainty that someone arguing for the redefinition of marriage will bring up the Supreme Court case Loving vs. Virginia, and compare marriage being defined as male-female to anti-miscegenation laws.

But Loving vs. Virginia was strictly about racial discrimination. It had nothing to do with the definition of marriage, any more than making black people sit in the back of the bus was about the definition of “bus”, or segregated lunch counters were about the definition of “lunch” or “counter”.

As with society at large, the Virginia statute at issue in Loving presumed the essential male-female nature of marriage:

The Lovings were convicted of violating § 20-58 of the Virginia Code:

“Leaving State to evade law. — If any white person and colored person shall go out of this State, for the purpose of being married, and with the intention of returning, and be married out of it, and afterwards return to and reside in it, cohabiting as man and wife, they shall be punished as provided in § 20-59, and the marriage shall be governed by the same law as if it had been solemnized in this State. The fact of their cohabitation here as man and wife shall be evidence of their marriage.”

The Supreme Court ruled that the Virginia statute was a violation of the 14th Amendment to the US Constitution. The Justices presumed the 14th Amendment pertained to race, and that the violation was based solely on racial discrimination:

Because we reject the notion that the mere “equal application” of a statute containing racial classifications is enough to remove the classifications from the Fourteenth Amendment’s proscription of all invidious racial discriminations, we do not accept the State’s contention that these statutes should be upheld if there is any possible basis for concluding that they serve a rational purpose.

….

In the case at bar, however, we deal with statutes containing racial classifications, and the fact of equal application does not immunize the statute from the very heavy burden of justification which the Fourteenth Amendment has traditionally required of state statutes drawn according to race.

….

The clear and central purpose of the Fourteenth Amendment was to eliminate all official state sources of invidious racial discrimination in the States.

….

There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification.

The Court also presumed the basic procreative, male-female nature of marriage:

Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival.

The only rational basis for marriage being “fundamental to our very existence and survival” is due to certain basic facts of human biology and sexual reproduction.

But liberals aren’t seeking to redefine marriage because they think it violates the Constitution, they assert that it violates the Constitution because they want to redefine marriage. The various arguments and assertions are infinitely malleable because they’re entirely outcome-based. Still, they must be refuted. This one is easy to refute. Loving simply doesn’t provide any justification for redefining the institution of marriage. Loving had nothing to do with the definition of marriage.

“Same-sex marriage” as elite fashion statement

A good examination of the strange drive among liberal elites for “same-sex marriage”, via the UK Telegraph: Gay marriage is now the issue through which the elite advertises its superiority over the redneck masses

A question rarely asked about gay marriage is how it became such a massive flashpoint issue. … The speed and ease with which gay marriage has gone from being a tiny minority concern to become the No 1 battle in the modern culture wars has been truly remarkable – and revealing.

The use of gay marriage as a platform from which to announce one’s superior moral sensibilities can be seen in the way that its backers, those ostensibly liberal reformers, look down with undiluted snobbery upon their critics and opponents. …

Or as one commenter at the NOM blog succinctly put it: “Supporting ssm is becoming no more than a fashion statement. Kinda like ‘going green.'”

Illegitimacy becoming the norm in the U.S. as Democrats work to undermine marriage

Via The Daily Caller:

Now more than half of all births to American women under 30 are born out of wedlock, and the trend in marriage-less birth is becoming an accepted reality of American life.

….

A number of factors have led the the rising numbers of illegitimacy – which most researchers agree increases a child’s risk of emotional problems and falling into poverty – including, as The Times noted, economic factors that have thinned the number of available, marriageable men; a larger social safety net; and a more promiscuous society.

And liberals, Democrats, and activist liberal judges are working to undermine marriage further by redefining it, asserting that the institution is unrelated to having children – in Washington, New Jersey, New York, Maryland, and California, among other places.

We as a society can either decide that marriage is connected to having children (and that creating a child ought to occur within marriage) – and support that understanding in the law, or we can abandon that understanding and redefine marriage to mean nothing more than a collection of government benefits for “Spouse A” and “Spouse B”. We can’t have it both ways. The statements “marriage has nothing to do with procreation” and “people should get married before having children” are in obvious conflict.

UPDATE: More on the effects of illegitimacy here.