Thursday, August 5, 2010

Judicial arrogance

John Yoo, who opposed the Federal Marriage Amendment and who would support a California law permitting gay marriage, explains why Judge Walker's decision invalidating California's constitutional provision restricting marriage to a man and a woman is not good for democracy:
It is a sweeping decision, not just on gay marriage, but for its elevation of the federal judges into arbiters of social norms and private morality. Judge Walker sees it as the job of the courts to test whether laws passed by a majority of the people, or a legislature, advance the public good as defined by expert testimony by social scientists. I'm more than happy if the government required that its own laws produce more benefits than costs. But do we want this job done by a single judge, or a small group of judges, relying on social science (in this case, the work of sociologists, psychologists, and political scientists produced to the court by the litigating parties) of a recent phenomenon? ....

Why is this troubling? First, social science — as anyone who reads these studies — is far from a perfect science. There are so many variables and alternative explanations involved in understanding human interaction. I am dubious whether sociologists and psychologists can tell us the real causes and effects of gay marriage — it has only been legal in the United States for a few years, and only in a few states. That is why my preferred solution of relying on federalism makes sense — if states can choose different policies, we can learn from the information generated and understand the costs and benefits.

Second, what does this portend for other legislation built on moral intuitions? If gay marriage goes by the wayside because it is hard to measure a ban's effects, what about similar laws. Will Judge Walker invalidate the ban on adultery next? How about bigamy? Why not allow group marriages? What about the age limitations on marriage or sex? ....
Later, in the comments, Yoo again:
.... Federalism allows for two things. It allows for experimentation, so we can learn what the effects of gay marriage are. But it also allows people to vote with their feet. States are like a market: they offer packages of policies. People can move to states with gay marriage or not, if that is their wish.
R.R. Reno, having read the decision, points out another ominous consequence, citing a section from Judge Walker's "Findings of Fact":
“Religious beliefs that gay and lesbian relationships are sinful or inferior to heterosexual relationships harm gays and lesbians.”

The implication is chilling. One of the jobs of government is to protect citizens from unjust harm. If, as Judge Walker seems to believe, as do many others, traditional views of sexual morality unjustly harm gays and lesbians, then the next step is clear. We’ve got to stop the harm, which means putting an end to the religious beliefs that homosexual sexual acts are immoral.

Perversely, in the testimony Walker cites, one of the clear signs of harm inflicted on gays and lesbians can be found in this fact: 84% of regular church-goers voted for Prop 8. In other words, what’s so bad about traditional views of sexual morality is that they are . . . opposed to progressive views about sexual liberation. And that’s an injustice that Judge Walker simply won’t allow.

The opinion goes on to cite a official documents from a number of different Christian churches and organizations: a hit list of sorts.
And here [read it all], is a secular case for the unique legal status of heterosexual marriage. Near the conclusion:
.... Insofar as I care for my homosexual friend as a friend, I am required to say to him that, if a lifelong monogamous relationship is what you want, I wish you that felicity, just as I hope you would wish me the same. But insofar as our lives as citizens are concerned, or even as human beings, your monogamy and the durability of your relationship are, to be blunt about it, matters of complete indifference. They are of as little concern to our collective life as if you were to smoke cigars or build model railroads in your basement or hang-glide, and of less concern to society than the safety of your property when you leave your house or your right not to be overcharged by the phone company.

That is not because you are gay. It is because, in choosing to conduct your life as you have every right to do, you have stepped out of the area of shared social concern—in the same sense as has anyone, of whatever sexuality, who chooses not to marry. There are millions of lonely people, of whom it is safe to say that the majority are in heterosexual marriages. But marriage, though it may help meet the needs of the lonely, does not exist because it is an answer to those needs; it is an arrangement that has to do with empowering women to avoid even greater unhappiness, and with sustaining the future history of the species.

Marriage, to say it for the last time, is what connects us with our nature and with our animal origins, with how all of us, heterosexual and homosexual alike, came to be. It exists not because of custom, or because of a conspiracy (whether patriarchal or matriarchal), but because, through marriage, the world exists. Marriage is how we are connected backward in time, through the generations, to our Creator (or, if you insist, to the primal soup), and forward to the future beyond the scope of our own lifespan. It is, to say the least, bigger than two hearts beating as one. ....
Gay Marriage Case — All Hail the Federal Judiciary - Ricochet.com, Here Come The Thought Police » First Thoughts | A First Things Blog, Sam Shulman — Gay Marriage — and Marriage