A Stitch in Haste

Commentary regarding the New York gay marriage ruling and Mayor Bloomberg's decision to appeal it:

New York Times:

One lower court judge -- or one small-town mayor, as in the case of New Paltz, N.Y., last year -- cannot single-handedly rewrite a state's marriage law. And gay couples should not be lured someplace to have weddings that could turn out to have no legal standing.

As I posted in the comments of Beaverhausen Blog, which first spotted the bizarre Times assertion:

What an astoundingly terrifying statement -- is the Times saying that there is no distinction between a judge interpreting the law and a mayor breaking it? That there is no such thing as separation of powers, that "government is government" and that "a judge is a mayor is a sheriff is a dog catcher"?

Justice Ling-Cohan was doing her job; New Paltz Mayor West and San Francisco Mayor Newsom were engaging in criminal conduct. Don't try to equate the two.

OpinionJournal:

None of these [fundamental rights] cases rest on solid legal ground. As Justice Douglas acknowledged in Griswold [v. Connecticut, 381 U.S. 479 (1965)], the right to privacy is to be found not in the Constitution but in its "penumbras" and "emanations." At the same time, there is a strong political consensus against the government intruding into people's bedrooms. If Griswold and Lawrence [v. Texas, 539 US 558 (2003)] disappeared from the books tomorrow, it's unlikely any state would rush to re-enact laws against contraceptives or consensual sodomy.

Abortion and same-sex marriage, by contrast, do spark strong opposition, but not on privacy grounds. Abortion opponents argue that life before birth is worthy of legal protection, while the case against same-sex marriage is that it confers public approval on gay relationships -- approval the New York and Massachusetts courts have given without public consent.

When judges find rights in hidden constitutional meanings, they run a twofold risk. If they limit those rights, striking balances and compromises between such competing values as privacy vs. life or privacy vs. morality, they act as politicians, only without democratic accountability. The alternative, to let those rights expand without limit, seems more principled and thus is more appealing. But it ignores democracy's most important principle of all: the right of the people to govern themselves.

This is, of course, utter nonsense. Forty years of Supreme Court jurisprudence spanning three Chief Justices and 21 Associate Justices would seem to qualify as "solid legal ground." I thought conservatives were supposed to be respectful of precedent, even if they disagree with it.

As is so often the case with so-called "strict constructionist" conservatives -- there is a rather flagrant bit of flat-out cheating in their version of constitutional interpretation. You can't have it both ways, whining about how there is no "right to privacy" in the Constitution, when there most certainly is, for instance the Ninth Amendment (a/k/a Bork's "inkblot") or the Fourteenth Amendment's Privileges & Immunities Clause, which was interpreted into oblivion the very first time the Supreme Court adjudicated it. Either be a "strict constructionist" or don't; the Constitution is not an a la carte menu.

Meanwhile, the "abortion versus gay marriage" analogy has been debunked so many times as to verge on Chinese water torture. To compare granting rights to the unborn with denying rights to the living is disingenuous and disgraceful. Stated differently, abortion is about death and the lack of love; gay marriage is about life and the embrace of love. Equate those at your own risk.

Finally, and equally eye-rolling and moan-generating, must we, yet again, remind so-called "conservatives" that the United States is not a democracy, that our founding principles are government restraint of unbridled mass democracy (i.e., mob rule) and protection of insular minorities? Do conservatives really want "democracy at all costs," especially in this PATRIOT Act, War on Drugs, tax-and-spend era?

Steve Miller's CultureWatch:

[W]hat would be gained by allowing mass weddings of dubious legality on the City Hall steps, repeating the images that came out of San Francisco last year that gays cheered but many others viewed as an anarchistic assault on marriage, thus fueling the national backlash. And to what end, since California's high court than nullified those weddings?

Um, no. Same mistake the Times made; the San Francisco ceremonies were blatantly illegal from the outset and everyone knew it; Newsom criminally issued bogus licenses and everyone knew it. Same with Mayor West in New Paltz.

And I thought it was Massacusetts, not San Francisco, that "fueled" the so-called "backlash" (and remember: gay marriage did not exist in a single state where today it, um, doesn't exist -- so much for the wailing and gnashing of teeth of the "too much too soon" crowd).

If Bloomberg has decided not to appeal and the stay had expired (by the way -- how "activist" was it for Justice Ling-Cohan to voluntarily issue that 30-day stay of her own accord?), then the licenses would have been presumptively valid, perhaps irrebuttably so (see my previous post).

As I blogged previously, I can't fault Bloomberg too much for deciding to appeal. But let's keep our facts straight clear -- a few vanity protests by headline-grabbing and law-breaking mayors is not the same as the judicial process functioning precisely the way it's supposed to. And shame on any gay activist who tries to confuse and scare gays into thinking otherwise.

Related Posts:
Thoughts on the New York Gay Marriage Decision
Can Extant Gay Marriages Be Nullified?
Is Marriage a Positive or a Negative Right?
Gay Marriage as the "New Abolition"
Gay Marriage: Any Lessons from the Boy Scouts?