A Long-Belated Response

Jason2004, I think you reviewed my first chapter in early February…sorry it took me this long to get back.  This is the most interesting and challenging review I’ve ever received. I guess with gay marriages becoming legal in Massachusetts this Thursday, it’s as good a time as ever to respond!

Judicial Policies

“When Bush refers to ‘activist judges’…he is referring to a new trend in the courts, wherein judges cease making impartial interpretations of the law and instead permit themselves to be biased by their political persuasions.”

In my government textbook (Lowi & Ginsburg, 6th Edition), “judicial activism” is defined as the federal courts protecting rights that are not specifically enumerated in the Constitution but which can be inferred from looking at the philosophical basis of the Constitution and the idea of fundamental human rights.  Judicial activism has been most pronounced in the past half-century since WWII, when the Supreme Court has shown less restraint in overturning state and federal laws and statutes in the attempt to extend civil rights to many groups of people.  The groups which have received benefits have been blacks, women, and gays, among others.

Part of this push was the “nationalizing” of the Bill of Rights, declaring that its protections extended not only to federal law but also to state law – in Gideon v. Wainwright, for instance, the court found that a defendant’s right to counsel could not be denied even in a state court, though the Bill of Rights originally applied only to federal courts.  Civil Rights were most helped by a large extension of the court’s interpretation of the “equal protection” clause of the 14th amendment.  Starting with Brown v. Board of Education (1954), the court struck down the idea of “separate but equal” accommodations for the races as being in accordance with equal protection, a decision that had stood since 1896.  Judicial activism also created the idea of a “right to privacy,” an idea central to many controversial court decisions.  The Supreme Court used this right to declare that the state of Alabama could not hold membership in the NAACP against people (NAACP v. Alabama).  It also used the right to privacy in handing down decisions on abortion, contraceptive use, and gay rights.

The concept of judicial activism is not simply a setting aside of law in favor of personal agenda – it is an attempt to look at what the laws and the idea of “freedom” truly guarantee citizens of the U.S.  There is, of course, personal bias inherent in that decision – but certainly not any more bias than is inherent in decisions against the right to privacy in certain cases.  The extension of rights and liberties is an attempt to provide our Constitution’s promise of equal protection to all citizens, not just those who originally benefited from it.  It can hardly be argued that judicial activism has not been greatly beneficial to society.

“Would you really like to stand before a judge with a bias toward the death penalty?...”

No, I definitely would not.

That being said, there are several important differences between the situation in Massachusetts and the situation you describe which make this a flawed analogy.  First, there is a difference in being biased in a direction that will extend rights or give the defendant the benefit of the doubt, and being biased in a direction that harms the defendant or limits rights.  The spirit of the United States government and heritage, from my history and government classes, has been to err on the side of the defendant or the party whose rights are in question. 

The marriage case in Massachusetts was also not a case before a criminal court, in which the defendant faced jail time.  It was a civil case before the state supreme court.  Under these circumstances – issue marriage licenses to gays or not? – an interpretation of citizen rights in Massachusetts was already set out on the table.  The Massachusetts Supreme Judicial Court did not, out of a clear sky, decide to give gays the right to marry.  It was presented a question of constitutional law and found that the Constitution of Massachusetts could not be construed to outlaw same-sex marriage.  Thus they ruled that same-sex marriage was to be allowed.

Homosexual Lifestyles

“Furthermore, homosexual lifestyles are profoundly unhealthy.  Studies show that homosexuals live for an average of 30 years less than a heterosexual person.”

If this information is true, then it is very alarming and very pertinent to gay health and safety.  However, it has no bearing on marriage rights for gays.  Marriage rights for gays will not affect these numbers in any way.  Love affairs have been happening, both heterosexual and homosexual, since the dawn of humanity, and they will continue, whether legitimate or not.  The state recognizing and giving rights to gay couples is not going to “lure” more people into “unhealthy lifestyles,” which would be an argument against gay marriage were it true.  Love affairs will happen, allowed or not. 

But for partners who are committed to each other, whether heterosexual or homosexual, the avenue of marriage should not be barred.  Marriage gives around 1,000 rights, including privacy rights, health insurance benefits, hospital visitation rights, and child custody rights, which are routinely denied to gays at the moment.  This makes our legal system nearly hell to navigate for gay couples trying to raise children or cope with the death or injury of a partner.  The government recognizing gay marriages would not harm the population health-wise, but it will help the population by extending rights making family life easier for many more people.

Sexual acts:

I have no personal knowledge on this subject, having never had gay sex.  However, I would make the same argument as above: sexual acts are going to happen, whether allowed by law or not.  Allowing gay marriage won’t increase or decrease the frequency of gay sex.  It is a separate variable.  There is no practical reason that I can see for bringing sex into the argument – sex is a personal choice, and it is bound to happen regardless.

AIDS:

AIDS is a terrible problem among the homosexual population of the U.S.  However, in Africa, most HIV infections come from heterosexual sex.  Should heterosexuals in Africa not be allowed to marry?  It seems that is the best decision given the circumstances, and given your reasoning on gay marriage rights.

Lesbians:

It seems that your arguments against the gay lifestyle so far revolve around gay males, since you have not referred to lesbians at all that I can see.  Does this mean that lesbians should be allowed to marry, but not gay men?  If you take the arguments based on AIDS and sexual acts to their logical extremes, it seems lesbians don’t have any strikes against them.

Domestic Violence, Brevity of Gay Relationships:

I went to Google, typed in “domestic violence income level,” and very quickly found the site .com.  Among the interesting facts I uncovered:

-women who are at-risk for domestic violence include

--women in poverty or poor living conditions

--women under thirty

-people at-risk for becoming domestic abusers include

--the unemployed

--abusers of alcohol

--those who witnessed abuse as a child

From these facts, I think several conclusions can be drawn.  First, since poverty/unemployment seems to be a major theme in risk for domestic violence, there should be a cutoff income bracket, below which no marriage licenses should be issued.  In this way we can make great strides in protecting women from domestic abuse.  Also, marriage licenses should not be issued to those under thirty or to those who are known to have grown up in abusive households.  A mandatory breathalyzer test will be administered upon application for a marriage license, as well.

Is long-term marriage for homosexuals impossible?  Actually, let’s break that down.  Your statistics seem to be pertinent only to the gay male population, not to lesbians.  So is long-term marriage possible for gay men?

Stereotypes abound about the gay community, and it is true that many gays are promiscuous.  However, this cannot be extended to say that there are no long-term gay relationships.  And given the divorce rate for heterosexuals at present (around 50%), an attack on the brevity of gay relationships seems rather like the pot calling the kettle black.

Also, what about the lesbians?

“Furthermore, homosexuals themselves are disinclined to marry.”

I have indeed seen opinion pieces by several homosexuals who believe that gay marriage is not necessary – or even that it will set back the cause of gay rights.  However, from all the material from the gay community I have read (www. is an online gay newspaper which has many weekly columnists, many of which comment on gay marriage), these people are in the minority.  This fact should be self-evident by virtue of the nationwide push for gay marriage rights – if homosexuals for the most part don’t want marriage rights, whence the strong push for those rights?

Incest/Polygamy:

Personal confession: I see nothing wrong with incest and polygamy in theory.  In practice, however, incest often yields children with birth defects due to a stunted gene pool.  That’s the reason for a legal ban on incestuous marriages.  I personally think polygamy should be legal – as long as there are protections for the young girls who frequently get pushed into marriage against their will.  Polygamy among consenting adults – that is fine by me.  So is homosexual marriage between consenting adults.

The Last Paragraph:

“Permitting homosexual marriage is to discriminate against married heterosexual couples.  It is on the same level as forcing Jews to throw open their synagogue doors to neo-NAZI’s for their sacred Saturday worship.”

Whoo, boy.  What’s that old phrase?  That in a political discussion, once one side mentions Hitler, it’s about time to quit the discussion?  Oh, well.

This analogy is flawed in several ways.  For one, “discrimination” is defined by Lowi & Ginsburg as “the use of unreasonable and unjust exclusion.”  Heterosexuals are not being excluded in any way, regardless of how the gay marriage debate ends up.  Heterosexuals will still be allowed to marry.  The marriage rights of straight people will not be affected in any way by same-sex marriage.

As for the “Jews and neo-Nazis” example, there is no comparison between the relationships of Jews and Nazis and straights and gays.  The Jews as an ethnicity were systematically exterminated by the Nazis, who preached hatred against them and considered them an impurity in the human gene pool.  The Nazis set themselves specifically against the Jews and all of their heritage.

Gay people, on the other hand, have never rounded up straight people for the gas chambers.  They have never publicly preached the death of all straight people.  In fact, gays have consistently been the victims of this kind of treatment and hatred from straights.  There is a very big difference between forcing a religious service to open its doors to those who believe all the congregants should be exterminated – and whose ideological forbears tried to do just that – and in forcing straight married couples to allow gay couples to partake in the same rights as they do.  By comparison, straights who shrink from giving gays equal rights seem downright petty.

There are certainly religious arguments against gay marriage – I won’t deny it.  But the religious dimension of marriage is not the only dimension.  Marriage is a legal institution as well.  And since the United States is founded on freedom of religion, ideally giving Christian, Muslim, atheist, Hindu, etc. views equal importance in the legal arena, there should be no legal ban against gay marriage because of some religions’ anti-gay views.  Recognizing gay marriage in the legal arena does not require churches to marry gays, which would be a violation of the separation of church and state.  No one is required to agree with gay marriages, only to tolerate them.  In the end, our society will be a lot better off for this toleration and acceptance than it is now with unequal laws keeping a portion of the population in virtual second-class citizenship.

Again, I really appreciated the review –it made me think.  And I’m sorry the response took so long.  I hope we can continue to discuss this issue.  Unless it’s been beaten to death by now, which is very likely.