Friday, December 31, 2010

The Unremarked Revolution

When I read debates about GOProud and CPAC I get the idea centrists dont' realize what's going on in this country.

I see a lot of Republican hostility towards social conservatives, as being an albatross around the necks of fiscal conservatives. Social conservatives cost elections! They should stop trying to make a national campaign and deal on a state by state level! They're trapped in "slippery-slope" fantasies about polygamy, bestiality and child marriage! Opposition to DADT repeal is bigotry, and nonsense about banning chaplains and churches is just hysterical rhetoric!

In 1996 Colorado passed pre-emptive laws to preclude laws penalizing discrimination based on sexual orientation. The US Supreme Court struck that down in 1996 in Roemer v. Evans, saying it wasn't serving any rational basis but animus towards a specific group, and violated the equal protections clause because it forced the targeted group to go rally political support to change the law.

Seven years later the US Supreme Court struck down all criminalization of sodomy in Lawrence v. Texas (2003). The majority held that, while homosexuality wasn't specifically guaranteed, there were liberty rights violated by a criminal ban on sodomy.

Now Prop. 8, a California law passed to correct a state Supreme Court decision declaring gays had a right to marry, is being challenged under the doctrines advanced by Roemer and Lawrence. If the 9th Circuit upholds Perry v Schwarzenegger, all the centrist outrage at our "slippery slope fantasies" will be refuted.

Justice Scalia, dissenting in Roemer, wrote:
The central thesis of the Court's reasoning is that any group is denied equal protection when, to obtain advantage (or, presumably, to avoid disadvantage), it must have recourse to a more general and hence more difficult level of political decisionmaking than others. The world has never heard of such a principle, which is why the Court's opinion is so long on emotive utterance and so short on relevant legal citation. And it seems to me most unlikely that any multilevel democracy can function under such a principle. For whenever a disadvantage is imposed, or conferral of a benefit is prohibited, at one of the higher levels of democratic decisionmaking (i.e., by the state legislature rather than local government, or by the people at large in the state constitution rather than the legislature), the affected group has (under this theory) been denied equal protection. To take the simplest of examples, consider a state law prohibiting the award of municipal contracts to relatives of mayors or city councilmen. Once such a law is passed, the group composed of such relatives must, in order to get the benefit of city contracts, persuade the state legislature - unlike all other citizens, who need only persuade the municipality. It is ridiculous to consider this a denial of equal protection, which is why the Court's theory is unheard-of.

14 years later, Judge Walker wrote in Perry:
An initiative measure adopted by the voters deserves great respect. The considered views and opinions of even the most highly qualified scholars and experts seldom outweigh the determinations of the voters. When challenged, however, the voters' determinations must find at least some support in evidence. This is especially so when those determinations enact into law classifications of persons. Conjecture, speculation, and fears are not enough. Still less will the moral disapprobation of a group or class suffice, no matter how large the majority that shares that view. The evidence demonstrated beyond serious reckoning that Proposition 8 finds support only in such disapproval. As such, Proposition 8 is beyond the constitutional reach of the voters or their representatives.

My emphases.

The "homosexual agenda" has led us headlong into revolution. We are poised to declare, as supreme law of the United States, that a state court finding of a general liberty or equal protection claim, cannot be revoked by "the voters or their representatives". It would be discriminatory and void to make laws that say 'Judge Whoosis was wrong, and his changes are reversed'. This raises immediate problems, not just for "social issues", but every other political argument where the Left is being beaten back at the ballot box.

What happens when a state court rules that "undocumented" residents must be allowed to vote in local elections? Immigration is a federal matter, remember; can there be an legitimate state interest in targeting the "undocumented" population? Isn't that just expressing an irrational animus?

How about state court rulings that state governments must participate in a federal health care scheme? You can't deny the poor and sick their equal protection rights, by forcing them to elect representatives who see it their way! They're entitled to a state government that seeks free money forever! [Courts are beginning to rule public education is such a right.]

The investiture of state courts with superior powers from the Federal Constitution, over their legislature and voters, will help wreck all aspects of the "conservative" agenda. To fight it will require a national campaign of opposition, at the federal level, especially in Senate confirmations of Presidential nominations to federal courts. It begins with refusing to celebrate the "historic" campaign to impose "gay rights" on the majority in our courts, however well GOProud does on MSNBC.

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