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Most Of The People, Some Of The Time, Redux, Etc.

"Judicial activism" is a funny term. It seems that now, when Judges behave conservatively (as in, conserving clearly delineated constitutional rights), that's "activism" -- especially if it requires that the judge point out the simple Lincolnesque truth, that it's possible to fool most of the people for long enough to get a really dangerously sweeping proposition passed into law.

Case in point: Nebraska's version of the boilerplate "Defense of Marriage" act has been struck down as federally unconstitutional in two distinct and sufficient ways: It "creates a significant barrier to the plaintiffs' right to petition or to participate in the political process" and "imposes significant burdens on both the expressive and intimate associational rights" of gays, lesbians, and potentially anyone who wants to form a legally binding association that's not a state-sanctioned "marriage" between a "man" and a "woman."

Like, say, shacking up. Or signing a palimony agreement. Between straights.

The Neo-Calvinists and their fellow-travellers keep talking about the fact that "over 70% of Nebraskans" decided to support the measure "defining marriage as between a man and a woman" after being barraged with highly charged advertisements and exhortations from the (real or virtual) pulpit for weeks to months. What really happened is that "over 70% of Nebraskans" decided to support a measure that they clearly did not understand. They didn't understand, for example, that it would radically restrict the rights of foster parents, unmarried opposite-sex domestic partners, persons in power-of-attorney relationships, non-custodial parents, and so on.

What really happened is that "over 70% of Nebraskans" got conned.

If it weren't for the fact that it would require abrogating the US Constitution, I'd be inclined to let Nebraska, Kansas and the rest of the virtual bible-belt just slide back into the dark ages. Politicized evangelism has far, far greater potential to destroy this nation than racial issues have had at any time in the last 40 years. Racial issues have at least been constrained: By notions of decency (no mainstream white could use the "N" word without censure), and by commonly-held economic desires (almost everybody wants the American Dream, and almost everybody is willing to see that, even about classes of people for whom they have contempt). Religious issues are not so constrained: When it's a religious issue, your opposition is evil, pure and simple -- believe that, or be damned. End of discussion. Please leave the church by the side door, so you don't soil the earth your neighbors have to walk on.

But [un?]fortunately, we do all have to live together in this country. We don't get to let them live in the mediaeval hell they seem determined to create. Not the least reason being that the virtual belt isn't limited to big square red states -- it harms people in places like Michigan and Connecticut who've never done any harm to anyone by being so immoral (or so unfortunate in their sexual orientation) as to dare to co-habitate without the benefit of state-sanctioned marriage.

So we don't get to let them sleep in the bed they've made. But we don't have to let them make us sleep in it, either.

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escoles wrote:

... it harms people in places like Michigan and Connecticut...

Some people harmed can include same-sex domestic partners and their children. The Detroit News offers a timeline, plus recent article, of same-sex benefits developments in Michigan.

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