A Stitch in Haste

Jane Galt has a confused, rambling non-sequiturfest at Asymmetrical Information in which she essentially calls on same-sex marriage advocates to "chill out" --

My only request is that people try to be a leeetle more humble about their ability to imagine the subtle results of big policy changes. The argument that gay marriage will not change the institution of marriage because you can't imagine it changing your personal reaction is pretty arrogant. It imagines, first of all, that your behavior is a guide for the behavior of everyone else in society, when in fact, as you may have noticed, all sorts of different people react to all sorts of different things in all sorts of different ways, which is why we have to have elections and stuff.

Hogwash.

Jane cites four mini-case-studies — income taxation, public housing, welfare benefits and liberalized divorce — to argue what we all know already: that changing government policies changes people's behaviors at the margin.

Um, so what?

The mile-wide blindspot in Jane's tome is that all her examples are non-discriminatory. Look at the income tax: two clones with exactly identical financial profiles pay exactly the same income tax — whether that tax is too high is an entirely different discussion. Yes, libertarians — or anyone — can disagree about whether "taxes are too high," but I would hope that a tax policy that discriminated against gays — or blacks or women or immigrants or any other group — would unite libertarians in saying "Now hold on a minute..."

In other words, we may, qua libertarians, dislike the income tax, but we would dislike it far more if it were discriminatory (which, admittedly, it generally isn't). For example, look at the sometimes intense nonpartisan indignation over something as relatively insignificant as the so-called "marriage penalty." Taxation and other fiscal policy discrimination against gays under DOMA is light-years beyond that, but I'm supposed to sit tight because of "the guy at the margin"?

Um, no.

Ditto for Jane's other non sequitur examples — yes there may be some room for debate as to whether they were or are wise or unwise to the extent that they did or did not properly anticipate changes in people's behavior. But they generally are not discriminatory — if they were, libertarians would be far more outraged and far more united.

I don't give a damn whether recognizing same-sex marriage affects anybody else's behavior "at the margin." I'm being discriminated against, and I want it to stop. The margin be damned.

No intellectually honest libertarian can be opposed to same-sex marriage. Putting "the margin" above the Constitution is the hobby of central planners, not libertarians. (As for the utopists who want "government out of the marriage business," I torched that straw man here.)

UPDATE: Jane responds in the comments, basically by defining down the word "discrimination" to meaninglessness. Okay fine, whatever.

If I had it over to write, I would have said that JG's four examples all concern welfare-statism or interventionism rather than "discrimination."

But I stick to my core thesis — all her examples are non sequiturs that totally blank out the fundamental questions of fairness over gay marriage. And someone who would deny an insular minority the protection of their basic individual rights simply because it might have unintended consequences "at the margin" has no business calling herself a libertarian.

Obernews also has a good response to Jane. See also these two Catallarchy posts.

On Tuesday, Kansas is set to pass by initiative a state constitutional amendment banning same-sex marriage. Nothing new there — many states' constitutional amendment processes are multiyear undertakings, so yes there will be a “mini-backlash” this year and perhaps a handful of laggards next year on top of that.

The interesting thing about Kansas, however, is that it already has a DOMA. But that isn’t enough for the corn-fed bigots, who are now hoisting the petard of recent judicial rulings in other states as some form of red herring to demonstrate the “need” to elevate anti-gay discrimination to constitutional status (i.e., to “defend” Kansans from their own non-anti-gay judges).

The amendment will pass overwhelmingly — no one disputes that. And those who prefer unbridled democracy (i.e., mob rule) over a limited-powers constitutional republic will praise the triumph of “will of the people,” while the “too much too soon” crowd will stockpile milk to spill so they can cry even more than they have been.

And while all that is going on, few will remember that we are talking about Kansas, where anti-gay bigotry was festering long before Vermont and Massachusetts and Lawrence v. Texas. This state, like Alabama and Louisiana, were lost causes long before there was a same-sex marriage debate and will remain so long after they become the minority viewpoint (which is inevitable).

To remind readers just how bass-ackwards the State of Kansas is when it comes to fair and equal treatment of gays, here’s a post I first published when I was guest-blogging at Tim Sandefur’s excellent blog Freespace, which I titled “What’s the Matter With (Statutory Rape) in Kansas.”

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One theme that recurred at a gay law conference I attended a few months ago was "Why isn't anyone talking about Limon? Where's the outrage?"

Well, I for one am never lacking in outrage:

Matthew Limon is a young man who has been diagnosed in the intellectual range between "borderline intellectual functioning" and "mild mental retardation."

In February of 2000, Limon and another male teenager were both students at the same co-ed residential school for developmentally disabled youth in Miami County, Kansas. A week after Limon’s 18th birthday, he performed consensual oral sex on the other teenager, who was nearly 15 years old — three years, one month, and eight days younger.

Kansas has a so-called "Romeo and Juliet" law (K.S.A. § 21-3522) that makes the penalty for statutory rape less severe when the case involves two teenagers. ...Because the "Romeo and Juliet" law excludes gay people, Limon was charged with criminal sodomy instead...

...Limon received a sentence of 17 years in prison, when a heterosexual teenager with the same record would serve a maximum of 15 months for the same offense. He has now served [61] months.

...The Kansas Court of Appeals had upheld Matthew’s conviction and sentence, based on Bowers v. Hardwick, the 1986 U.S. Supreme Court case that had upheld anti-gay sodomy laws. On June 26 [2002], the Court decided Lawrence v. Texas and overturned Bowers, striking down sodomy laws nationwide. The next day, the Supreme Court vacated the decision upholding Matthew’s conviction and sentence and remanded his appeal for reconsideration in light of Lawrence. The Kansas Court of Appeals again upheld Limon's conviction in January of 2003.

Matthew Limon has now been in prison for [over five] years, already three and a half times as long as a heterosexual teenager would serve for the same offense. He is not set to be released until he is 35 years old.

One particularly obnoxious (and dumb) retort to gay marriage used by bigots is "there's no discrimination here — a straight man is free to marry a woman and a gay man is free to marry...a woman."

But try reconciling that with the facts of Limon: "Matthew Limon could easily have received a reduced sentence — all he had to do was statutorily rape a teenage girl instead of a teenage boy." Or if you prefer, "Kansas considers the statutory rape of a girl less than ten percent as wrong as the statutory rape of a boy." (And remember, we're talking about oral sex here, not anal; many states define "sodomy" as anything other than basic vaginal intercourse).

If you think that's bad, take a look at the Kansas Court of Appeals' decision re-affirming the conviction. Remember, the U.S. Supreme Court explicitly told the Kansas court to reconsider Limon's conviction in light of Lawrence. Translation: Lawrence applies to this case — don't pretend it doesn't.

The Kansas court's response: horselaughter.

My Constitutional Law professor once said it's perfectly permissible, even healthy, to disagree with a Supreme Court ruling. It is not okay, however, to openly defy one. If the Supreme Court says Lawrence applies, then it applies, deal with it. The Kansas court, however, impudently devoted barely a sentence to Lawrence, copping out by saying that Lawrence was about consenting adults; Limon and the other boy were not consenting adults, therefore Lawrence is completely irrelevant.

Having spit in the Supreme Court's face, the Kansas Court of Appeals then proceeds to do what it must in upholding the conviction: attempt to justify the discrimination embedded within the state's Romeo and Juliet law under rational basis review (issues such as the Eighth Amendment's ban on cruel and unusual punishment were not major points on appeal).

The Kansas court's rational basis analysis reads like a C- final exam answer from the Jerry Falwell School of Law:

In enacting K.S.A. 2002 Supp. 21-3522, the legislature could have reasonably determined that to prevent the gradual deterioration of the sexual morality approved by a majority of Kansans, it would encourage and preserve the traditional sexual mores of society. Moreover, traditional sexual mores have played a significant role in the sexual development of children. During early adolescence, children are in the process of trying to figure out who they are. A part of that process is learning and developing their sexual identity. As a result, the legislature could well have concluded that homosexual sodomy between children and young adults could disturb the traditional sexual development of children.

So is Kansas saying that heterosexual statutory rape is part of the "traditional sexual mores of society"?

Throughout history, governments have extolled the virtues of procreation as a way to furnish new workers, soldiers, and other useful members of society. The survival of society requires a continuous replenishment of its members. On the other hand, sexual acts between same-sex couples do not lead to procreation on their own.

Translation: Heterosexual statutory rape is not so bad because we might get little "workers, soldiers and other useful members of society" from it. Lenin would be so proud.

This one's my favorite:

When a child is born from a relationship between a minor and a young adult, the minor is often unable to financially support the newborn child. In many cases, the minor is still a dependent. As a result, the financial burden to support the newborn child properly falls to the young adult. Obviously, the young adult cannot furnish adequate financial support for the newborn child while he or she is incarcerated. The legislature could well have concluded that incarcerating the young adult parent for a long period would be counterproductive to the requirement that a parent has a duty to provide support to his or her minor child.

Of course, Kansas' Romeo & Juliet statute doesn't actually require that a child be conceived to qualify the heterosexual statutory rapist for the lesser sentence. Details, details...

Oh, almost forgot: can't discuss gay sex without invoking AIDS:

The legislature could well have considered that same-sex sexual acts between males might increase their risk of contracting certain infectious diseases. Medical literature is replete with articles suggesting that certain health risks are more generally associated with homosexual activity than with heterosexual activity.

Not exactly. When performing oral sex on a male, the gender of the one preforming the act doesn't matter for the purposes of AIDS risk. No mention of that in the statute or the opinion either.

The case is currently before the Kansas Supreme Court. Should it uphold the conviction then expect it to land right back before the U.S. Supreme Court — while Matthew Limon continues to sit in jail.

Coming back full circle — why isn't the Limon case getting the publicity it deserves? Several reasons I think. First Limon is represented by the ACLU and not a gay-rights group such as Lambda Legal, so it might be flying under the radar screens of most gay activists. More importantly, the case on its face does not intrinsically inspire sympathy — we are admittedly talking about statutory rape and the mentally impaired. Limon did have a history of such conduct.

Compare and contrast: Lawrence v. Texas was, literally, the perfect test case. It concerned two consenting adults in the privacy of their bedroom. There was no prostitution involved. The police had no search warrant (they were responding to a false report by a neighbor of an "armed intruder"). There was no other crime (e.g., a drug offense) being committed. Heterosexual sodomy was legal in Texas; only gay sex was criminalized.

But does any of that mean Matthew Limon deserves less justice than John Lawrence did?

I've shown you the trees — now step back and see the forest again: Commit statutory rape against a girl, get 15 months. Commit statutory rape against a boy, get 17 years.

Don't tell me it's not about naked bigotry.

How very interesting that one and only one county in Kansas voted against that state’s bigot amendment -- Douglas County.

What’s so interesting about Douglas County? It happens to be where the University of Kansas is located.

So if I were in a bad mood, I would say something like this:

Pass all the constitutional amendments you want, Cornheads, because we’re still going to get to your kids and corrupt them with all our un-Christian ideas about limited government, equal protection, due process and basic human dignity.

If I were in a bad mood...

UPDATE: pogueGO is in a bad mood...

Can you fisk this passage?

"All these state amendments are going to be struck down by federal judges," said Matt Daniels, president of the Alliance for Marriage. "We're in a race now — in a race between the democratic process in Kansas and other states and the federal courts."

It’s actually quite a simple fisk: not a single “activist judge” who has made a pro-gay ruling has been a federal judge — they have all been state judges.

Vermont, Massachusetts, New York, California, even Hawaii all the way back in 1993. They were all state courts and state judges. Moreover, with one exception (Nebraska), the litigation now on the docket or being planned by groups like the heroes at Lambda Legal is all taking place at the state level, not federal. (Which of course makes sense: state constitutional issues must generally be litigated in state courts, with final appeal to the U.S. Supreme Court. Lower federal courts generally have nothing to do with it.)

So why all the histrionics about federal judges? Simple: “federal” sells. You want a federal marriage amendment? Make a “federal case” out of it (sorry for the pun). Need some more ammunition in the federal judicial nomination crisis? Throw in some dire warnings about “those uppity gays.” State legislatures not always going your way? Bait-and-switch the issue to those distant and detached “federal judges.” Need a target, especially a target of “others”? Don’t focus on your own state’s judges — that might expose the contradiction, since local judges are, um, local. No, better to represent the issue as one of outsiders, even invaders, who threaten your local, corn-fed, god-fearing, “democracy trumps the Constitution” way of life.

It seems to me that lies equate with desperation. We see it relentlessly among those opposed to Social Security reform and now we’re starting to see it in the gay marriage debate. For all the milk-spilt crying about “backlashes” and “too much too soon,” the opposition seems to be increasingly nervous.

Good.

UPDATE: There's also a California same-sex marriage case in federal court, but that's because the plaintiffs are challenging the federal DOMA as well as California's.

I generally neither read Salon nor link to it. Like many people I find their “brief commercial” approach annoying.

But they have a piece on Matthew Limon, the teenage boy sentenced to 17 years for performing oral sex (or, as Kansas calls it, “statutory rape”) on another boy. Had the sex been with a girl, Limon would have fallen under the Kansas “Romeo and Juliet” statute and received no more than 15 months. (In case you forgot, Kansas recently reaffirmed its status as one of the worst bigot states in the country.)

This may be the most underreported anti-gay story out there. You cannot hear the facts and the law and not want to scream.

Here’s the Salon link; here’s my prior post about Limon.

Hat tip to How Appealing.

Yesterday I berated a New York City local hack politician who happened to be a Democrat.

So in the spirit of non-partisanship, here’s a New Hampshire local hack politician who happens to be a Republican:

The chairman of a state commission on gay marriage is refusing to recognize Gov. John Lynch's appointee to the panel -- sparking talk of a looming legal battle.

Rep. Tony Soltani, R-Epsom, has refused to recognize Raymond Buckley, a Democrat and former Manchester representative, at the panel's last two meetings. He said Buckley's appointment isn't legal and is standing by Bryan Gould, former Gov. Craig Benson's appointee.
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The Attorney General's Office has said Lynch's appointment is within the law. But Soltani refused to let Buckley speak at a meeting on Monday.
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Now Buckley, who is openly gay, said he is looking for a lawyer. Buckley also is considering filing an ethics complaint against Soltani with House leaders. "Soltani's behavior is nothing less than a being a bully," Buckley said. "Bullies just have no business in being a leader."

Lynch Spokeswoman Pamela Walsh said Soltani "has run amok."

More:

Associate Attorney General Ann Larney advised Lynch's office that the governor could make the switch because the law does not specify terms for commission members. Larney said the law's "plain language" clearly allows governor's appointees to serve at the pleasure of the sitting governor.

But Soltani isn't budging. "This will be resolved in the court," he said this week. "I'm the chair, so if I don't recognize someone, they're not recognized. They must compel me to recognize someone and if they try, they will lose."

I suppose, in the wake of the (judge-less) gay rights developments in Connecticut, it’s now the “activist democratic process” that has the bigots so agitated -- “A gay on a commission about gay marriage? Appointed by an elected governor? Certified by an elected Attorney General? But that circumvents the democratic dictatorial process!”

On the other hand, New Hampshire is now completely surrounded by three states (and a country) that have all made significant -- indeed huge -- progress in ending anti-gay discrimination.

If I were a New Hampshire bigot, I might try some desperate theatrics too. I guess the next step might be to claim that any vote granting gay rights must be passed unanimously, lest some bigot claim the democratic process is being "thwarted."

Hat tip to Good As You.

Completely unrelated (but fun) New Hampshire post here.

Well, one voicemail.

A reader asked my opinion about a proposal by the University of Kansas to extend same-sex partner benefits to faculty and staff despite that state's bigot amendment.

Just one problem: I can't find any articles about it.

What I did find was a proposal by politicians in Lawrence, Kansas (where U of K is located*), to establish a completely symbolic same-sex partnership registry. No benefits whatsoever -- just a statement of principle and some warm fuzzy feelings.

Would such a registry violate Kansas' rather harsh and vicious "no nothing never" same-sex partnership ban? Probably not: no benefits = no problem. (The state's attorney general concurs.) Of course, by the same token, no benefits = no benefits. So assign your own subjective value to the proposal.

Meanwhile, regarding the University of Kansas, what I can offer instead are some old links to similar "Bigot State University" questions that arose in Michigan and Wisconsin. The latter's state university system has stated in no uncertain terms that its inability to offer same-sex partner benefits has hindered its ability to recruit faculty. And the former's state supreme court has ruled that the bigot amendment enacted there is indeed a "no nothing never" proscription, not just a gay marriage ban -- and will therefore no doubt apply to the state university system.

I see no reason to conclude that Kansas will be any different.

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(*Lawrence was also the only part of Kansas where the bigot amendment failed. Go figure.)