Pure, Distilled Essence of Hate

I'm sure most of you have heard that some variation of the argument that ending even state-sponsored bigotry against gays and lesbians is wrong because it would violate certain unspecified "religious rights." But when you do it with the stupidly as Tony Perkins does for CNN, you've provided a definitive example. The basic argument is that ending bigotry might create some discomfort for people who want to continue expressing bigotry, and the latter is much more important than the former. I especially enjoyed this bit:

As an ordained minister and a Marine Corps veteran, I was invited to speak at a prayer event at Andrews Air Force Base earlier this year. I had every intention of delivering a spiritual message, not a political one.

But the invitation was withdrawn after I criticized President Barack Obama’s call to open the military to homosexuality in his State of the Union address. The base chaplain told me they had received some complaints - about a dozen. I pointed out that orchestrating a handful of calls was a simple task for homosexual activist groups.

If I was blacklisted merely for supporting existing law, what will happen to those who oppose the new, politically correct law?

We cannot have freedom and equality, and must support qualified people being fired by the military during the war for irrelevant factors, because is might violate the inalienable right of hateful assholes to be invited to speak at prayer events. I'm convinced!

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Obama to ask Congress to repeal DADT

CNN is reporting that Obama will ask Congress to repeal the Don't Ask Don't Tell legislation. Of course "asking" could mean everything from making this a legislative priority to engaging in a largely empty symbolic gesture. Given that Obama almost certainly has the authority to stop discharges based on sexual orientation by issuing an executive order, it will be interesting to see how seriously he pursues what up to now has been perhaps his most egregiously broken campaign promise.

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Give 'Em Enough Rope

This largely fawning Times Magazine profile of Robert George nonetheless manages to be quite damning. George's purportedly major intellectual contribution, Fitzpatrick explains, is to apply tautology and bare assertion natural law to contemporary questions of jurisprudence and political theory. You will probably not be surprised to learn that this would-be modern Aquinas has discovered that "natural law" and "practical reason" reveal...a near-perfect photocopy of the 2008 Republican platform:

Last spring, George was invited to address an audience that included many bishops at a conference in Washington. He told them with typical bluntness that they should stop talking so much about the many policy issues they have taken up in the name of social justice. They should concentrate their authority on “the moral social” issues like abortion, embryonic stem-cell research and same-sex marriage, where, he argued, the natural law and Gospel principles were clear. To be sure, he said, he had no objections to bishops' “making utter nuisances of themselves” about poverty and injustice, like the Old Testament prophets, as long as they did not advocate specific remedies. They should stop lobbying for detailed economic policies like progressive tax rates, higher minimum wage and, presumably, the expansion of health care — “matters of public policy upon which Gospel principles by themselves do not resolve differences of opinion among reasonable and well-informed people of good will,” as George put it.

[...]

The “rights” to education and health care are another matter, George told his seminar. “Who is supposed to provide education or health care to whom?” George asked. “Health care and education are things that you have to pay for. Resources are always finite,” he went on. “Is it better for education and health care to be provided by governments under socialized systems or by private providers in markets or by some combination?” Those questions, George said, “go beyond the application of moral principles. You can get all the moral principles dead right and not have an answer to any of those questions.”

It is to his credit, I suppose, that he's so straightforward about his cafeteria Catholicism. But it is nonetheless clear that the argument he's making fails on its own terms. Surely the truism that "you can get all the moral principles dead right and not have an answer to any of those questions" applies no less to abortion policy than anything else, which makes it highly relevant that George's preferred policy mix (draconian criminalization of abortion, reactionary gender politics, minimal welfare state) in fact has a notably dismal record even when it comes to reducing abortion rates. Indeed, there's much better evidence that robust welfare states reduce poverty than that abortion criminalization substantially reduces abortion rates (as opposed to the incidence of safe abortions.) Moreover, it seems rather clear that grubby politics rather than natural law is the primary factor in determining why George and his adherents are more concerned with same-sex marriage than, say, no-fault divorce when addressing alleged offenses against traditional marriage.

As a punchline, I'll also highlight this tidbit:

Later that year, when Bill Clinton denied Casey a chance to speak about abortion at the 1992 Democratic convention, it was George who had helped to write Casey’s speech.

Yes, the fact that Casey was denied that speaking slot sure was an outrage...

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QOTD

Edroso, on one of the most prominent bigots on the "Democratic" side of the aisle in Albany:

I will say that Hiram Monserrate surprised me, in that I don't see how he manages to be so perfectly disgusting all the time. From his beginnings as a deranged cop to his (as a councilman) Willets Point double-cross to his involvement with the Albany "Gang of Three" shakedown artists and Coup to his assault on his girlfriend, this guy seems almost consciously determined to set new standards of repulsiveness. Maybe he's a government experiment of some kind.

And what's even worse is that when it comes to determining the most loathsome member of the Democratic caucus he has serious competition.

...a more positive example.

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Keep Waitin'

I must remind everyone once again that Peter Beinart, like so may centrist contrarians, was wrong about many things other than the Iraq War. You may remember his claim that the New York courts refusing to end the state's marriage discrimination was the best thing ever to happen to same-sex marriage rights in New York. Well, as we were reminded again today, this was and remains egregiously false. (Depressingly but not surprisingly, 8 Senate Democrats hopped on the bigotry train.)

In a rational world, the comparison of New York and Maine on the one hand with Massachusetts, Vermont, Connecutcuit, and Iowa on the other would put the countermobilization myth to bed once and for all. Alas, if you're pitching articles contrarianism sells a lot better than rationality.

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The Christian Values Spokeswoman Competition

I'm assuming that she failed to fulfill all of the duties of the position at the high standard demanded by the National Organization for Marriage, and that the crown will now pass to the first runner-up...

...to be clear, I value this more as an occasion for mocking NOM, and of the various conservative organizations and pundits that undertook the lionization of Ms. Prejean, than of criticizing Prejean personally. I think that she deserves some opprobrium for embracing the most hateful groups in our society, but I also think that she's been dealt a difficult and unfair hand.

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Frankfurterism

I have an article up on TAP noting that the referendum overturning same-sex marriage rights should once and for all make clear that "the idea that changes in support of gay and lesbian rights can preempt controversy and organized opposition as long as the courts stay out of it is a pernicious myth."

The remaining puzzle is why an argument -- that courts generate a unique backlash -- with so little theoretical or empirical basis has so much appeal to a group of scholars and pundits on the ostensible left or center-left. It's clear that in many cases pundits and scholars are projecting a democratic theory onto a public that doesn't share it. But what is that theory, exactly? As I briefly mention in the piece, decisions requiring marriage equality would seem at least consistent with any normatively attractive theory of judicial review -- if legally plausible arguments against the exclusion of an unpopular minority from fundamental rights aren't a defensible basis for the exercise of judicial review, what is? (If these arguments sprung from an opposition to judicial review, period, this would be more credible, but they rarely do.) To me, the patron saint of the courts-should-use-judicial-restraint-except-when-they-shouldn't school is Felix Frankfurter. Mark Tushnet's take on Frankfurter in A Court Divided is (if you don't count the famous Robert Cover baseball quiz) definitive:

For the next two decades, including the Term Rehnquist worked for Jackson, the Court remained divided. The divison was exacerbated by deep personal conflicts. Felix Frankfurter, a former law professor who thought of himself as a sophisticated constitutional theorist, basically couldn't develop a decent theory to help him decide what to do, but he knew he despised William O. Douglas, the quintessential activist. (17)

And I think this pretty much applies to most of the scholars and pundits who become instant experts in Massachusetts or Iowa equal protection law to denounce "judicial activism" -- it's a way of making it seem that you have a sophisticated view of judicial review and democracy. Not that you have such a view, but that you think it would be neat to acquire one. And the landmark precedents for such views have to be Frankfurter's arrogance-cloaked-in-humility dissents in W. Virginia v. Barnette and Baker v. Carr. Sure, the legal arguments range from unconvincing (the 1st Amendment has nothing to say about mandatory state loyalty oaths) to embarrassingly specious (the only remedy for being illegally unrepresented in the legislature is to petition your non-existent political representatives.) No, there really is no coherent reason why judicial restraint is demanded in these cases but, say, the reverse-incorporation argument in Bolling v. Sharpe is perfectly OK. But the most important thing is to occasionally engage in some mock-tortured moral handwringing to show that you're better than the dirty legal hippies of the day, and if that means that some Jehovah's Witnesses get beaten up and expelled or some African-Americans have no effective legislative representation or many same-sex couples are denied the right to marry, well we have to get out priorities straight.

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Some of My Best Friends...

Ye Gods, Diaz is a tool. However, I still have to agree with Peter Beinart that the failure of New York courts to act in defense of the equality and dignity of the state's gay and lesbian citizens was the best thing to ever happen to the cause, because with legislative leaders like Diaz how could legislation granting same-sex marriage rights fail to pass?

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Bad News In New England

Maine voters shamefully reject same-sex marriage law. Clearly, this proves that litigation doesn't work.

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