The Absurd Rhetoric of the Anti-Equality Position

There’s an old legal proverb that goes like this: “When the facts are on your side, pound the facts. When the law is on your side, pound the law. When neither is on you side, pound the table.” Those who oppose legalizing same-sex marriage have followed this strategy. Since neither the facts or the law is on their side, they are forced to resort to dishonest spin and wildly exaggerated rhetoric, as law student Luke Douglas displays perfectly.

Deafening cheers electrified the victory celebration.

On November 4, 2008, the people of California passed Proposition 8, defining marriage as between one man and one woman. I was there. I was there when supporters of traditional marriage, poring for hours over live polling data finally erupted with shouts of triumph. At the victory party in Sacramento, amid throngs of cheering volunteers, I remember realizing that not all was lost in this world

On the front steps, overflowing out across the street, bustling about in all directions was a massive anti-marriage crowd

Since those decisions last summer, the lower courts have entered a free-for-all feeding frenzy. Kennedy’s majority opinion demonstrated the High Court’s disregard for legal authority, and their willingness to pull nebulous new standards out of thin air as they go along. As a consequence, lower courts could rule either way on state marriage laws, but they have overwhelmingly opted to rip traditional marriage up by its roots

In short, Windsor and Perry did not establish a standard, they removed all certainty. They left every court and every citizen in America wondering what the law is or what it will be tomorrow. There is no standard in Windsor, only a deliberate experiment in chaos.

And in the void left by the collapse of law, there is room to build a new standard. A standard in which tolerance transforms into the new tyranny.

One emotionally loaded, inaccurate term after another, all designed to sow unjustified fear. If gay people are allowed to get married, all will be lost in the world. Their enemies are anti-marriage (wait, which side is trying to prevent people from getting married?). They’re ripping traditional marriage up by its roots. And yet not a single “traditional marriage” is going to be affected in any way whatsoever if gay people are allowed to get married, so what could this rhetoric possibly even mean? And of course, TYRANNY! Letting gay people get married is TYRANNY! Be afraid, be very afraid!

This question goes to the very root of our form of government. Will we be governed under the rule of law, or by nine life-appointed philosopher kings? Will we be governed by the vote of our people, or by helplessly watching black-robed demigods use the pretense of law to experiment with chaos?

Such ignorance. Our form of government includes unelected judges, appointed for life, with the power to overturn legislation that is contrary to the Constitution’s guarantee of equal protection of the laws. The judicial branch was given that power quite intentionally by the founders and it was an explicitly anti-democratic provision. It has never been a part of our government that we are “governed by the vote of our people” in all situations. He isn’t defending “our form of government,” he’s defending what he thinks our form of government should be (except when he doesn’t, I’m sure; if he thinks a law is unconstitutional, he would run to the courts to get it overturned just as everyone does).

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  • eric

    This question goes to the very root of our form of government. Will we be governed under the rule of law, or by nine life-appointed philosopher kings?

    Remind me, what’s the count now in terms of states legislatively allowing same sex marriage? Seems to me you’re losing on your own termed ‘rule of law’ front too.

  • http://drx.typepad.com Dr X

    Black-robed… bwahahahaaa…

  • http://quodlibet-sarah.blogspot.com/ Quodlibet

    Marriage equality is inherently, and by definition, pro-family. Marriage is, in part, about creating and sustaining families (with or without children; children are not relevant to this question). Every adult person has the right to create and sustain a family with the adult person(s) of their choice.

    Just writing that down eases my annoyance and anger a little bit.

  • amenhotepstein

    “… black-robed demigods…”??? And this jackass is a LAW STUDENT?

  • eric

    Secondly…

    In short, Windsor and Perry did not establish a standard, they removed all certainty

    Perry wasn’t a ruling on SSM, it was a ruling on Ed’s old bugaboo, the question of standing.

  • colnago80

    Master Stewart is a law student at Liberty “University”, and according to his Facebook page, his heroes include Robert E. Lee and JEB Stuart. Just another Christianist poopyheaded hack. Tells you everything you want to know about him.

  • colnago80

    Re eric @ #5

    As I understand it, the plaintiffs had standing to sue in Federal District Court but lacked standing to appeal a decision. That is apparently the precedent that the SCOTUS followed. Apparently, Scalia and Roberts were reluctant to overturn that particular precedent, explaining why they voted to deny standing.

  • http://motherwell.livejournal.com/ Raging Bee

    Will we be governed under the rule of law, or by nine life-appointed philosopher kings?

    …whom they’d be showering with praise if they were all more like Scalia.

  • Kevin Kehres

    Well, I do have a friend who is divorced from a woman and married to a man … so it’s possible that some “traditional” marriages might be in jeopardy.

    The shitty, hate-myself-for-being-in-a-closet kind.

  • Taz

    Will we be governed by the vote of our people

    I wish the folks constantly making this argument would ignore the court losses and (attempt to) pass more anti-SSM amendments. I really wish they would.

  • badgersdaughter

    “… black-robed demigods…”??? And this jackass is a LAW STUDENT?

    One who evidently doesn’t think he will ever need a judge to be favorable to his side of a case, I take it.

  • colnago80

    Re Kevin Kehres @ #9

    Well, Meridith Baxter was married to co-star David Birney but was divorced, came out of the closet, and married her current wife Nancy Locke.

  • tbp1

    As I mentioned over there, you’d think a law student would be familiar with the concept of “judicial review.” It’s a fairly important procedure, and one that isn’t likely to go away anytime soon.

    Conservatives are all in favor of unelected judges setting aside the law whenever it’s a law they don’t like. It’s only “judicial tyranny” or “legislating from the bench” when it’s a law they do like.

  • John Pieret

    amenhotepstein @ 4:

    And this jackass is a LAW STUDENT?

    It kindda depends on what definition you apply. From his personal website:

    Luke is now in the Juris Doctorate program at Liberty University School of Law and the Master of Divinity program at Grace School of Theology

    More like taking a major in religion with a minor in law (which is the only kind you’ll get from Liberty University School of Law).

  • scienceavenger

    @9 I think you’ve hit on it. They think if gay marriage is allowed, those closet gays who are pretending to be straight to the extent of being married to an opposite sex partner will bolt. But so what? Those marriages can’t be very happy for the spouses, or healthy for the kids.

    It’s amazing to me that with all the public discourse on this subject I’ve never seen a single tv news/talk host say “OK, I’m heterosexual, and I’m married. What is legalizing gay marriage going to do to me?”

  • whheydt

    I watched most of the arguments in the 9th Circuit hearing on Monday. Perry came up in the Nevada case. The pro-equality side stated that, while they had no problems with anti side at the circuit level, they would lack standing to appeal to SCOTUS, meaning that once the 9th Circuit gave their decision in that case, it was game over in Nevada.

    It also looked like the third judge–Gould–was teleconferenced in, and he was having major problems staying awake. The other two judges made mincemeat of the anti-SSM lawyers attempt at making an argument.

    The Hawaii case was something of a farce. The repeated question was, basically, “Why are we even hearing this? The other two cases here today are going to render this case irrelevant.”

  • colnago80

    Re whheydt @ #16

    The SCOTUS also ruled that the plaintiffs had no standing to appeal to the 9th Circuit Court of Appeals so that the ruling reverted to the District judge’s ruling in the California case.

  • eric

    @15:

    They think if gay marriage is allowed, those closet gays who are pretending to be straight to the extent of being married to an opposite sex partner will bolt. But so what?

    Well, the cynic in me says this possibility upsets fundies because they think their marriages will be personally affected by it.

    But having discussed this with a fundie in a different forum, I think most honestly believe they are preventing people from doing something spiritually harmful to themselves. The reason they can’t come up with a viable legal harm in court is not because they don’t have any real notion of what that harm could be. They know exactly what sort of harm they think occurrs. The reason they are so inarticulate about it in court is because they are aware that no judge is going to buy the harm-to-the-soul argument they really would like to make.

  • http://en.uncyclopedia.co/wiki/User:Modusoperandi Modusoperandi

    colnago80 “Well, Meridith Baxter was married to co-star David Birney but was divorced, came out of the closet, and married her current wife Nancy Locke.”

    “Tonight, on a very special Family Ties…”

  • Reginald Selkirk

    Virginia marriage by couple in 90s may be illegal, judge says

    Well that’s said. Oddly, the article never explains on what grounds the marriage might be illegal. I suspect it has to be because gay marriage has destroyed the institution of marriage entirely.

  • colnago80

    Re Reginald Selkirk

    The reason given was that there was evidence that the woman was senile and incompetent.

  • D. C. Sessions

    More like taking a major in religion with a minor in law (which is the only kind you’ll get from Liberty University School of Law).

    A little respect here, please. Liberty University Law is where most Republican judges will be coming from, especially for the Supreme Court.

  • D. C. Sessions

    But having discussed this with a fundie in a different forum, I think most honestly believe they are preventing people from doing something spiritually harmful to themselves. The reason they can’t come up with a viable legal harm in court is not because they don’t have any real notion of what that harm could be. They know exactly what sort of harm they think occurrs.

    Their biggest problem is that they are not the ones that they allege to be harmed — they’re trying to argue that they should have legal standing to complain that George Takei is harming himself.

    Not, to understate the matter just a wee bit, a strong principle in US jurisprudence. Nor, I suspect, one that they would tolerate in any other context.

  • whheydt

    Re: coinago80 @ #17…

    Yes and no. In the Prop. 8 case, the state declined to appeal in defense of Prop. 8, but didn’t try to stop a private party from making the attempt and that is who SCOTUS said lacked standing, reinstating the original district court ruling (which was a much broader ruling than the one from the 9th Circuit).

    In the Nevada case, the state filed the appeal and then, in the wake of decision barring peremptory challenges to jurors solely on grounds of sexual orientation, the Governor and AG of Nevada said they no longer had a case to argue, but they allowed a private party to argue it (poorly, in my estimation, but IANAL) in their stead. The plaintiffs in the case simply pointed out that the private party trying to defend the Nevada anti-SSM laws lacked standing to *file* an appeal with SCOTUS, citing Perry to support that conclusion. The parties were asked–before the hearing–to discuss standing. Both sides said that they had no problem with the private party taking the argument at the 9th Circuit. That side didn’t say anything I recall hearing about standing to take it further, which rather strongly suggests that they know that the 9th Circuit is the end of the road for the Nevada case.

    I suspect that most of the remarks made attempting to defend the idaho, and to a lesser extent Nevada, laws (same guy, same basic arguments) were really aimed at SCOTUS, given the make up of this panel and their judicial history. Idaho is pretty certain to appeal (since it’s a virtual certainty that they’ve lost at the 9th Circuit), but there are enough cases ahead of them in line that, if SCOTUS takes an SSM case at all this year, their case will be moot one way or the other.

    And–contrary to what you said (but probably not contrary to what you were thinking)–the plaintiffs in the Nevada case *do* have standing to appeal to SCOTUS in the unlikely event that they lose in the 9th Circuit. It is anyone other than the State of Nevada that is barred by standing from trying to file an appeal to defend the laws in the SCOTUS.

  • thebookofdave

    When the facts are on your side, pound the facts. When the law is on your side, pound the law. When neither is on you side, pound the table.

    When you have neither the facts, the law, or popular support on your side, and you’re willing to ruin families for political convenience, you can go pound sand.