Barber Doesn't Understand How the Law Works

I know that headline won’t surprise anyone. In response to the Supreme Court’s judicial inactivism this week, Matt Barber went on Janet Mefferd’s show and argued that not only can the courts not change the laws on marriage, the states themselves can’t do it because God defined it and that settles it.

“This doesn’t even belong in the courts,” he told Mefferd. “Marriage is what marriage is, you can no more redefine marriage than you can suspend the laws of gravity. They can say they’re going to do it but it doesn’t alter reality, so the fact is this matter doesn’t belong in the courts. States don’t even have the right to redefine marriage, it’s like saying I want to redefine purple.”

This is what we call a category error. A legal statute is not at all like a physical law. A physical law cannot be changed, but a legal statute can. We change them all the time. The only time Barber makes this moronic claim is when he disagrees with the change. Oh, and he thinks governors should ignore the courts:

I’d love to see a Gov. Rick Perry or a Gov. Mary Fallin say to these federal courts of appeals: ‘Excuse me, get the heck out of Oklahoma, get out of Texas. We the people have voted, this is our state constitution, Baker v. Nelson is clear, the Supreme Court has already spoken on this issue, there is no constitutional right. Thank you for your opinion, but that’s all it is, it is an opinion, and we are going to go ahead and reject that opinion and we are going to go ahead and maintain our constitution and the natural, age-old, millennia-old definition of marriage as between man and woman, we are not going to get into this San Francisco-style social experimentation in Oklahoma and Texas, thank you very much.’ I would love to see somebody with the courage to do that.

Remember the last time a governor did that? His name was George Wallace and he was trying to stop little black children from getting a decent education. Barber’s wish is not so different from that.

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What Are Your Thoughts?leave a comment
  • D. C. Sessions

    I totally endorse his advice to Republican governors that they flip off the Circuit Courts for their Districts. If necessary, have the local sheriffs arrest Federal judges and rebellious county clerks. If that doesn’t do it, have them arrest Federal Marshals as well.

    This is, after all, a matter of obedience to God rather than Man. Tell Obama and his minions in black robes stick their “judgment” where it belongs — you, Governor, answer to God Almighty. You know where your loyalties lie and whose law to uphold.

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

    A legal statute is not at all like a physical law. A physical law cannot be changed, but a legal statute can.

    Oh really? Just try to get gay married. You can’t. Oh, sure, you can get the certificate and have a wedding and live together and act like you’re married, but you’re not really married even if you pretend to be and even if nobody else can tell that you aren’t really married, you can.

     

    Barber’s wish is not so different from that.

    It’s totally different. For one thing it’s not typically socially acceptable to be against black people anymore. Unless they’ve got Skittles.

  • RickR

    Excuse me, get the heck out of Oklahoma, get out of Texas. We the people have voted, this is our state constitution

    It’s always so enlightening when their absolute hatred for the United States is expressed so baldly.

  • John Pieret

    It’s totally different. For one thing it’s not typically socially acceptable to be against black people anymore.

    Unfortunately for the bigots, Modus, it’s not so socially acceptable today to be against gay people either. Which is why they whine so much when they get called bigots. Though I grant that it is socially acceptable to be against Skittles.

  • moarscienceplz

    It’s always so enlightening when their absolute hatred for the United States is expressed so baldly.

    No, no, no. They don’t hate America, because America totally agrees with them. It’s only the un-American, hippie, pinko, homo, feminazi, lazy, jew-boy, liberal, elitist, intellectuals sponging off welfare that are against them.

  • abb3w

    If the federal government can redefine a tomato as a vegetable rather than a fruit, they can certainly redefine what the government recognizes as a marriage.

  • John Pieret

    it’s like saying I want to redefine purple

    Ever seen a spectrum, Matt? What you call purple, others might call violet or lavender.

    The issue here is whether, under our Constitution, the government can give certain rights and privileges to one group but deny them to another simply because the sexual orientation of the second group causes them to love people of the same sex.

  • whheydt

    Fallin did say pretty much what he’s calling for (including her citation that OKs anti-SSM laws passed with a 76% favorable vote). What she *didn’t* say was that she was going to refuse to obey the appellate court mandate…so at least she’s smarter than Barber, or perhaps she just understands which side has the heaviest artillery.

  • Nick Gotts

    If redefining marriage is impossible, why is he worrried about the Supreme Court doing it?

  • gertzedek

    Hmm…so, natural law is derived based on observation of nature, no? If marriage is a natural law, then we ought to observe how people naturally partner. Lessee…

    1. Many people partner with the opposite sex, some with the same sex, some with both.

    2. Some people take naturally to monogamy, some prefer polyamorous arrangements.

    3. Most monogamous relationships eventually involve extra-marital affairs or hookups, with or without the other partner’s knowledge.

    All right, so let’s define marriage by natural law! Then everyone would have a bisexual, possibly polyamorous open marriage, just like God intended!

  • mikeym

    Marriage is what marriage is, you can no more redefine marriage than you can suspend the laws of gravity

    Don’t tell Ray Comfort that.

  • jnorris

    Question for Mr Barber: when same gender (sex) marriage becomes the law of the land, what will you right wing scare mongers demonize to continue taking money from your idiot base?

  • Michael Heath

    John Pieret writes:

    The issue here is whether, under our Constitution, the government can give certain rights and privileges to one group but deny them to another simply because the sexual orientation of the second group causes them to love people of the same sex.

    The government can not give, “certain rights”. Under our form of government, our rights are inalienable, they belong to each of us. Government doesn’t create rights and then extend them or not, regardless of what Fox News and Ann Coulter assert. Instead the courts decide whether it’s constitutional to infringe on a right we own or whether they must instead protect a right.

    The government may have the delegated power to infringe on a right, or it may serve a ‘state interest’ to infringe on a right in order to protect the superior, competing rights of other individuals. If you read the court’s opinions closely, you’ll see even J. Thomas uses the parlance of determining whether the government must protect a right, or doesn’t for the reasons noted above.

  • http://www.pixelated-reality.com Alareth

    But marriage has been redefined over and over in history.

    “Traditional” Biblical marriage was a contract between one man and one woman’s father.

  • Michael Heath

    JNorris writes:

    Question for Mr Barber: when same gender (sex) marriage becomes the law of the land, what will you right wing scare mongers demonize to continue taking money from your idiot base?

    I’ve been playing that game a long time with spectacularly bad results. It was my opinion in 2000 or so that conservative Christians would turn their energies towards hating on non-believers after they lost on the gay rights debate. But I was wrong, instead we saw them turn on brown-skin people fighting to get to America, women, black people (again), and on all Muslims after 9/11. But I’m pretty sure we still remain high in the queue.

  • Michael Heath

    Alareth for the win:

    But marriage has been redefined over and over in history.

    “Traditional” Biblical marriage was a contract between one man and one woman’s father.

  • John Pieret

    Michael Heath @ 13:

    Under our form of government, our rights are inalienable,

    A very poetic and inspiring phrase that the Founders worked very hard in framing the Constitution to enact. It is the Constitution … our form of government … that bestows “rights.” Our rights are “inalienable” just as long as we maintain a government that protects them, as can be readily seen in the rest of the world.

    More specifically, in this context, I was talking about such things as the “right” of “married persons” to tax breaks, automatic inheritance, making medical decisions for spouses and children and many more that are only as real as the legislation enacting them. All of them could be done away with … as long as it was done equally.

    I think we’ve had this discussion before. Once the government bestows a “right” or “privilege” … call it what you will … under our Constitution, every one similarly situated has the right to them on the same basis as the favored group under the principles of equal protection and due process of the law, enacted by human beings in our Constitution … no spooky unembodied inalienable rights existing separate and apart from human beings needed.

  • Michael Heath

    John Pieret writes:

    It is the Constitution … our form of government … that bestows “rights.”

    The government doesn’t “bestow” rights. The 9th Amendment:

    The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

    Instead the Constitution provides license to the government to in some cases infringe upon those rights or, obligates the government to either ignore such infringements or protect them.

    You dive down a rabbit hole when you conflate rights with privileges developed through policy. There’s credible reasons the framers didn’t conflate rights with privileges where they often referred to rights as ‘immunities’. I think because immunities better frames the topic back to their asserting that rights are inalienable; government doesn’t “grant”, “create”, or “bestow” rights. To do so would violate the ‘just governance’ standard argued in the Declaration of Independence and violate the 9th Amendment.

  • John Pieret

    To prove our government doesn’t bestow rights you quote the Constitution … which is our government. It is you who are conflating various state and Federal administrations with “government” and in doing so, you risk Scalia-like “originalism” where, if the people who framed the Constitution and amendments didn’t think of all the ramifications of the right being created, only what they thought of at the time is the right that was bestowed. The 9th Amendment was and is simply proof that the Founders were smarter than Scalia. Thus, some 150 years after the 14th Amendment and some 215 years after the 9th Amendment, we can suddenly discover that gays have the right to be treated equally and with due process under the law. The “distinction” between rights and privileges is, in the context of equal protection and due process, trivial and simply assumed by lawyers to be subsumed under our 14th Amendment rights. This is confirmed by all the SSM cases. There are discussions of whether or not marriage is a fundamental right and discussions of all the “privileges” bestowed by marriage on heterosexuals that are denied to gays but no discussion at all of any difference between “rights” and “privileges.”

  • Michael Heath

    John Pieret writes:

    To prove our government doesn’t bestow rights you quote the Constitution … which is our government.

    Correct, I quote the Constitution. It delegates authorities by ‘we the People’, where we never delegated any power to any government to create or “bestow” rights. Instead the Constitution:

    a) delegates powers to infringe upon some of our rights,

    b) obligating the government to protect some of our rights that were numerated

    c) provides systemic protection even for those rights that aren’t numerated, e.g. privileges and immunities clause, the privileges or immunities clause, the equal protection and due process clauses.

    d) Establishes a framework of judicial review to determine how government should act when controversies arise that infringe upon our rights.

    John Pieret writes:

    It is you who are conflating various state and Federal administrations with “government” and in doing so, you risk Scalia-like “originalism” where, if the people who framed the Constitution and amendments didn’t think of all the ramifications of the right being created, only what they thought of at the time is the right that was bestowed.

    I am conflating local, state, and federal authorities. If I did so improperly please quote what I wrote and then explain why that was wrong. Because of the supremacy clause in the Constitution and the architecture of the federal government, I’m fairly confident nothing I wrote in this thread has me incorrectly conflating the various governmental entities’ delegated authorities and obligations.

    John Pieret writes to me:

    . . . you risk Scalia-like “originalism” where, if the people who framed the Constitution and amendments didn’t think of all the ramifications of the right being created, only what they thought of at the time is the right that was bestowed.

    Again, the framers as a group never claimed to have created rights and it certainly doesn’t show up in either the Constitution or even the most authoritative arguments of the time, e.g., the DofI and The Federalist Papers (there may be some outlier examples of sloppy language by an individual). The framers did assert the existence of rights that they also asserted were inalienable.

    Your Scalia quip and conclusion makes no sense with what I wrote – they do not reconcile. Again, our rights are ours. James Madison repeatedly asserted we couldn’t effectively attempt to even numerate all our rights, hence the 9th Amendment and reference to ‘immunities’. And again, the framers never limited protection of rights to those you falsely claim they bestowed. Quite the opposite when they left out such language you claim, ratified the 9th, and set up a process of judicial review in order that the judicial branch could protect our rights as controversies arose.

  • Michael Heath

    John Pieret,

    I suggest carefully reading some Supreme Court opinions where the plaintiff asserts the government is infringing on a right of theirs while also claiming the government either has no authority to do so, or instead is obligated to protect that right.

    In those opinions you’ll find majority and dissenting opinions applying different levels of scrutiny to determine whether the government must protect that right, even in the context of a competing government interest. You won’t find the justices looking to see if such a right was created by the government and therefore worthy of protection – that is not a paradigm the courts use.

  • John Pieret

    the Constitution … delegates authorities by ‘we the People’, where we never delegated any power to any government to create or “bestow” rights

    … after which you list a number of rights bestowed by the government in the form of the Constitution. You have an obsession with the notion that the Constitution is somehow not part and parcel of “the government.” It is and it bestows rights and, through the amendment process, can take them away.

    I am conflating local, state, and federal authorities.

    I said you were conflating them with “government.” Government includes the Constitution.

    Your Scalia quip and conclusion makes no sense with what I wrote

    My point was that, if you assume that “government” only means the particular Senate, and House that pass an amendment and the particular state governments that ratify it, then the assertion that those peoples’ understanding of what rights they were granting is (at least arguably) the one that should be applied now. Did the people who enacted the 14th Amendment mean for it to guarantee same sex marriage? Certainly not! But in granting to “people” the right to equal protection and due process under the law, our Constitution thus bestowed a right greater that what those people thought it did.

    the framers as a group never claimed to have created rights and it certainly doesn’t show up in either the Constitution

    Then why did they write the Constitution with a Bill of Rights? Soaring rhetoric aside, where do rights come from? God? The Great Spirit? Or do they come from “[g]overnments … instituted among Men, deriving their just powers from the consent of the governed”? And what the consent of the governed gives, it can take away.

    You won’t find the justices looking to see if such a right was created by the government and therefore worthy of protection

    Indeed you won’t. Instead, they will look to the Constitution, created by our government, and thus have no need to consider any such false distinction.