Well, well, well: it seems that European Union lawmakers are considering legislation that could force churches to marry same-sex couples. The Telegraph reports that the EU proposal could also compel religious schools to admit people outside their religion -- this, in the name of non-discrimination. The Telegraph editorializes:
What is being attempted, under the guise of eliminating discrimination, is discrimination against Christians. Since legislators in Brussels must be well aware of this, it is disingenuous of them to pretend to be well-intentioned. The wider agenda is to remove anti-discrimination laws from the jurisdiction of Westminster to Brussels, when public opinion favours a reverse process - the repatriation of authority to Britain.Brussels, in contrast, is heir to the bitterly anti-clerical politics of continental Europe, which is no part of the British tradition. Yet even Westminster legislation has closed Catholic adoption agencies, while a politically correct reign of terror is afflicting our workplaces, with the latest victim a charity worker who chatted casually with a colleague about his religious beliefs excluding same-sex marriage. Health workers who have offered Christian comfort to ill people have intolerantly been penalised.
So, this Easter, Christians have something of a mountain to climb in an increasingly hostile environment. They should remain undaunted: they have been here before.
By now, it should be perfectly clear that when the pro-SSM crowd tells you that fear of loss of religious liberty as gay rights and SSM advances is nothing but groundless hysteria, they're peeing on your leg and telling you it's raining.
I have always firmly believed that the First Amendment would keep this sort of thing from happening here. I still do, but after reading Jacob Sullum's essay on the Iowa decision, I'm a little less confident. Sullum is a libertarian who favors same-sex marriage, but says achieving it the way the Iowa court did it poses serious risks for liberty. Excerpt:
According to the court, "equal protection can only be defined by the standards of each generation." But if the justices had defined equal protection by the standards of this generation (in Iowa, at least), they would have let the gay marriage ban stand."The point in time when the standard of equal protection finally takes a new form," the court said, "is a product of the conviction of one, or many, individuals that a particular grouping results in inequality and the ability of the judicial system to perform its constitutional role free from the influences that tend to make society's understanding of equal protection resistant to change." Let's be frank: Under this approach, it does not take "one, or many, individuals" to change the meaning of the constitution. It takes exactly four.
As the court noted, legislatures draw distinctions between groups all the time. They establish criminal penalties, impose age restrictions, and set conditions for government benefits. If such policy judgments violate equal protection whenever four justices disagree with the reasoning behind them, the line between what judges do and what legislatures do begins to disappear.
Worse, this sort of result-oriented jurisprudence cannot be confined to decisions that limit government and expand freedom. If courts can reach "a new understanding of equal protection" that renders invalid heretofore constitutional laws, they also can reach a new understanding of the First Amendment, allowing restrictions on political speech in the name of fighting corruption, or the Commerce Clause, allowing the federal government to intervene in areas previously reserved to the states or the people.
In these and other cases, changing conditions are said to require reinterpretation, and since no constitution is perfect you or I may occasionally like the results. But over the long term we cannot count on an evolving constitution to protect our rights.
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I assume you're talking about Lawrence v. Texas, in which case the practices of other Western nations came up because the opposite side (in Bowers) explicitly claimed that Western civilization widely condemned homosexuality. Citations of foreign courts, parliamentary committees, et al. refuted that assertion. The actual decision (if you bothered to read it) rested on the 14th amendment.
False, Geoff. The state's case in Lawrence v. Texas didn't rely on foreign law. References to the settled norms of Western Civilization, of which the United States is an integral part, are not an invocation of particularly foreign law. Justice Kennedy's invocation of a directive issued by European Union bureaucrats is another matter entirely. Such foreign directives can not be treated as either binding or persuasive authority by a U.S. Court.
But I wasn't referring merely to Lawrence. The left wing of the Court has in recent years cited foreign law and non-self-executing multinational treaties (always very selectively) in order to justify affirmative action programs at state universities, abolish capital punishment for minors and abolish capital punishment for the "mentally disabled."
Whatever one thinks of the immediate practical results of these decisions, their reliance on foreign law is untethered to anything in the United States Constitution. It is a fig leaf to cover the shame of justices who are usurping the authority of legislators to impose their personal preferences on the public.
Your Name at 11:54 a.m. is me. Damn Captcha.
To Franklyn:
First question: what makes it illegitimate in those cases you have in mind? Please be precise, because it has always been my view (corrections always welcomed) that judicial review is its own legitimacy. It (the judges at each level) decide whether an appeal has merit. The Supreme Court "decides" many cases simply by refusing to hear them. Those hoping for a reversal are understandably unhappy at refusal to hear, but do they have any claim that such refusal is illegitimate?
Franklyn, an appellate court can certainly decline to hear a case, just as prosecutors can decline to prosecute a criminal case if they wish. But the court's refusal to hear an appeal merely decides that particular case. Bad news for the party that lost at the lower court level, but it has no significance as legal precedent.
For example, one can imagine a trial court deciding a particular case in a way that severely restricted the free speech rights of a defendant. The higher court's refusal to hear an appeal of that case does not affirm the trial court's ruling as binding precedent on other courts in other cases. It just means the higher court does not want to use that particular case as a vehicle to address the larger constitutional question, for any number of reasons.
The legitimate discretion not to hear a particular appeal is entirely different from hearing the appeal and setting forth an opinion as to what the law is that is blatantly incorrect. When addressing questions of constitutional law, the Court is supposed to be clarifying the meaning of the U.S. Constitution. Invoking foreign law (or supposedly changed social circumstances) to justify the Court's decision is ipso facto illegitimate.
Simon, this is a sincere question: if US jurisprudence should reject non-US legalisms (a point that I will at least stipulate agreement with), would you also exclude other sources? I'm thinking, of course, of the Bible, but there are other sources involved there as well.
Re: lower courts being upheld by refusal of appeal.
Simon, sorry for the cross-posting.
Thanks for that clarification. If you'll forgive a layman's "but why?" follow-up: in your restricted speech allusion, would it be valid to extend the refusal of the higher court to a failure to address an illegitimate decision?
I may have phrased that badly; I don't how else to put it. I'm not trying to trap you in a circular argument. If that's all it amounts to, just say so and we'll move on.
"In these and other cases, changing conditions are said to require reinterpretation, and since no constitution is perfect you or I may occasionally like the results. But over the long term we cannot count on an evolving constitution to protect our rights."
Rod, when the constitution was written, blacks were slaves, women didn't were disenfrachised, and only men of property could vote. All of these things have changed as conditions have changed, and this has reduced the rights of the sort of rich white men who wrote it. But would you support reversing these changes now? Isn't that always the price one pays for extending equality under the laws? Apart from your religious objectives, which are irrelevant to the definition of CIVIL marriage, how can you deny the rights that everyone else enjoys to gay people? Perhaps the real reason is that, deep down, you believe that gays should be treated like second-class citizens.
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