Friday, April 3, 2009

Iowa gay ruling: Power to the elites!

The news:
The Iowa Supreme Court issued a unanimous ruling Friday finding that the state's same-sex marriage ban violates the constitutional rights of gay and lesbian couples, making Iowa the third state where gay marriage is legal.
In its decision, the court upheld a 2007 district court judge's ruling that the law violates the state constitution. It strikes the language from Iowa code limiting marriage to only between a man a woman.
The court's ruling begins, bizarrely, by praising the character of the plaintiffs:
Like most Iowans, they are responsible, caring, and productive individuals. They maintain important jobs, or are retired, and are contributing, benevolent members of their communities.
Can you say "non sequitur," boys and girls? Whether they were drug addicts or unemployed truck drivers, this is no measure of their rights. Will update with more.

UPDATE: This goes back to something I blogged about yesterday, when Debra Dickerson wrote:
Enjoy the last few years left of discriminating against gays 'cuz them days is almost gone. . . . Homophobia is on a short list of acceptable bigotries. But it's fading fast.
This is the attitude of an elite that is about to impose its will on the reluctant masses. Debra Dickerson sees that her opinion -- that pathological "homophobia" is the only reason why gay marriage is not legal -- is shared by her fellow members of the elite, including the legal establishment. They have the power to make their opinion law, and Dickerson's scoffing at the masses is the elite exulting in its own power: "Hahaha, you ignorant rubes can't stop us!"

Notice how the rainbow armband accentuates their brown shirts. Splendid!

UPDATE II: More elitism from the Iowa court's ruling:
Many leading organizations, including the American Academy of Pediatrics, the American Psychiatric Association, the American Psychological Association, the National Association of Social Workers, and the Child Welfare League of America, weighed the available research and supported the conclusion that gay and lesbian parents are as effective as heterosexual parents in raising children.
Argumentum ad verecundiam -- the appeal to authority, in this case the authority of "many leading organizations" in the social sciences. One of the dirty little secrets of social science is that it is possible to "prove" anything, if you're willing to accept shoddy methodology.

We need only ask what "many leading organizations" said about homosexuality circa 1920 or 1950 to see that there is no fixed and permanent truth in social science. And again this returns us to the fallacy of "progress": Because elite opinion has changed in recent decades, this change becomes synonymous with progress, and skeptics find themselves excluded from the argument because their opposition to "progress" represents an attack on the prestige of the elite.

UPDATE III: To judge by the Memeorandum thread, as of 11:55 a.m., only liberal bloggers are commenting on the Iowa court decision.

UPDATE IV: Allow me now to put on my "top Hayekian public intellectual" hat, and explain a bit of why my Austrian-influenced views don't send me trotting into the camp of the left-libertarians on this issue. To be as concise as possibly, the gay marriage issue is not about liberty. It's about equality, as Andrew Sullivan makes explicit:
As always, there is a backlash against civil equality. But the process of removing basic constitutional rights by amending the constitution to strip a specified minority of such rights is, understandably, an onerous process.
"Civil equality" -- what a heavy freight Sully wishes those two little words to carry! He refers to proposals by conservatives to pass a state constitutional amendment to prevent the court from imposing its will on Iowans.

No one can plausibly argue that the authors of the Iowa state constitution, or the people who ratified that constitution, intended to make sodomy -- which the same people and their representatives proscribed as a crime, in accordance with venerable Anglo-American common law tradition -- a "right" of the citizen. And yet, because the state constitution also speaks of "equality," the trick of the litigious sophists is to argue that the equality clause negates the right of the people to define marriage.

"Equality" is not a libertarian maxim, and yet many people who have wandered into the libertarian camp have brought with them this smuggled cargo of egalitarianism. The principle of liberty dos not require that we treat different things as if they were equal, or to pretend that differences do not exist.

The crusade for same-sex marriage is a consequence of a prior crusade to convince us that there are no meaningful differences between men and women. As a certain Hayekian public intellectual wrote in January:
Are men and women equal in the fullest sense of the word? If so, then equality implies fungibility -- the two things are interchangeable and one may be substituted for the other in any circumstance whatsoever. (La mort à la différence!) Therefore, it is of no consequence whether I marry a woman or a man. . . .
This is why so many of those who would defend traditional marriage find themselves unable to form a coherent argument, because traditional marriage is based on the assumption that men and women are fundamentally different, and hence, unequal. Traditional marriage assumes a complementarity of the sexes that becomes absurd if you deny that "man" and "woman" define intrinsic traits, functions, roles.
Andrew Sullivan is as free to marry a woman as I am, and I am prohibited (at least by the laws of my state) from marrying a man just as Sullivan is. We are, therefore, fully equal under the law, the only difference being that he desires to be married to a man and I do not. His desire for legal endorsement of his preference is thwarted, although his civil liberty is uninfringed.

Sullivan may own property, execute contracts, serve on juries, vote, drive, own firearms, etc., the same as anyone. Yet he makes a great show of his martyrdom to homophobia, so as to elicit pity, to qualify for the victim status that is so coveted in contemporary culture. And if you call bullshit on his histrionic display, you are a bigoted homophobe (since Sully arrogates to himself the power to decide who is or is not a homophobe).

This entire way of thinking is contrary to the Anglo-American tradition that Hayek praised. Hayek understood that knowledge is diffuse, scattered widely throughout society, and that the traditions of a successful society represent the collection of useful knowledge that the society has gained through experienced. The arrogance of the elite, desirous to impose their own modernist experiments upon the society, is based on the fallacy that the elite's modernism is more "scientific" than the traditions of the society.

This is why the elite always advocate centralization of authority, so that their projects will be universal in scope, allowing no alternatives, no diversity whereby ordinary people may evaluate by comparison to the two regimes. The Soviets wanted to abolish free societies, because the prosperity of free societies stood as a rebuke to the misery of the victims of socialism. But within the sphere of their own influence, the Bolshevik commissars insisted upon a centralized regime of universal scope: Everything was subject to the rule of the commissars, and the fact that their authority was total is where we get the word "totalitarian."

Sully speaks the language of "civil equality," but it has a meaning quite opposite of what such terms meant to Hayek. Sully's "equality" is one imposed with authority of an elite, a regime that is fundamentally hostile to the rights secured by the victors at Runnymede.

Excuse me if I've offended any of my fellow Hayekians. There is a huge chasm between Sully's totalitarian "must" and Hayek's libertarian "may." We ought not encourage Christians and other traditionalists to believe that "libertarians" would require them to endorse policies that their conscience requires them to oppose. The denizens of Castro Street and Provincetown are at liberty to do as they wish, but the friend of liberty should be skeptical of the proposition that every street must be Castro Street or that every town must be Provincetown.

UPDATE V: In the comments we hear from Professor Donald Douglas -- who yesterday elaborated on my examination of nihilism in the gay rights movement -- and who today congratulates me on "getting over to the social conservative side of things."

Well, Professor, I've never been anywhere else, really. The crisis of the moment has required me to focus on promoting opposition to the Obamanomics agenda (IT WON'T WORK), and in that cause we'll take every ally we can get. There are plenty of gay men and lesbians (including Cynthia and Tammy) who share my respect for sturdy economic truth, however much we disagree as to their "rights."

Without economic freedom, there is no freedom. The captives in the gulag did not spend their time arguing about gay rights, eh? (Solzhenitsyn was a devout, conservative Christian who condemned the decadence of the West with as much vehemence as he denounced Soviet tyrrany.) Let me remind my Christian conservative friends of a passage of Revelation that gets too little scrutiny:
And he causeth all, both small and great, rich and poor, free and bond, to receive a mark in their right hand, or in their foreheads: And that no man might buy or sell, save he that had the mark, or the name of the beast, or the number of his name.
-- Rev. 13:16-17
The infamous anti-Christ, whose name is the mystery number "666," is exercises religious, political and economic authority. Either you worship and obey the Beast, or you will be denied even the right to buy and sell. Therefore I conceive it the duty of every faithful Christian to oppose every expansion of governmental economic power.

The Book of Revelation has often been twisted into pretzels by self-appointed prophets who claim to know the identity of the Beast. I am sufficiently modest in my theology that I would not dare claim any such knowledge. However, we have seen many times in history tyrannies that resembled this final apocalyptic tyrant: The Jacobins of revolutionary France, Stalin in Russia, Hitler in Germany, Mao in China, Pol Pot in Cambodia, Mugabe in Zimbabwe.

We know how these bestial tyrannies operate, and we know that centralization of economic authority is fundamental to their power. As the passage says, the anti-Christ wields power over "small and great, rich and poor, free and bond," and we might as well add "gay and straight," for centralized tyranny is ironically equal in its evil. Study how Stalin sent his own henchmen to their deaths and you see that it is often more dangerous to be a supporter of evil than to be an outspoken opponent of evil. Read the Koestler quote I use as the blog motto:
"One should either write ruthlessly what one believes to be the truth, or else shut up."
Now, what I believe to be the truth about gay rights may be offensive to some of those who agree with me about economics, but I would forfeit my self-respect if I didn't write about social issues as ruthlessly as I write everything else. If you are a gay person who thinks that I "hate" or "fear" you because I disagree with you on such issues, you must ask yourself, "Who told me this? Who told me that anyone who disagrees with the gay-rights agenda is a hateful bigot? And if I see evidence to the contrary, should I trust my own experience or should I continue to trust what I have been told?"

As to Christians who endorse economic interventionism, I need merely reference the observation of Ludwig von Mises that a "Christian socialist" is . . . a socialist.

UPDATE VI: Finally, Memeorandum lists comments by NRO's Ed Whelan (who calls the ruling "gobbledygook") and the Weekly Standard's John McCormack (who calls the decision "preposterous").

UPDATE VII: Professor Douglas now generously gives me the FMJRA. (NTTAWWT.) Isn't it kind of ironic, BTW, that one of the most important rules of "How to Get a Million Hits on Your Blog" involves this decidely non-"family values" joke?

UPDATE VIII: Dale Carpenter at Volokh Conspiracy analyzes the Iowa decision in a lawyerly context.

UPDATE IX: Tom Maguire:
C'mon - what kind of a country are we if liberals can't launch another grand social experiment on the backs of the black community?
Meanwhile, a clever variation on the "progress" fallacy in the comments:
As someone said, gay marriage is less a moral issue than a generational one. And you're on the wrong end of the generational divide.
All the cool kids are for same-sex marriage! This combines the "progress" fallacy with the "bandwagon" fallacy, neither of which is persuasive to sober minds. Even if the syllogism were valid (it's not), the premise is flawed.

"A majority of voters 18-24 favor progressive Proposition X, which is opposed by a majority of voters over 50." Ergo, the fool believes, once the old fogeys die off, the progressive views of today's youth will prevail. Yet youth is fickle and especially subject to trendy suasion, otherwise the death of Archie Bunker and the triumph of the Woodstock Nation would mean, in 2009, we'd all be wallowing naked in the mud to the sound of Canned Heat.

Most of the Baby Boomers sobered up, got jobs, acquired kids, mortgages, minivans and paunchy bellies, and if today's 60-year-olds are not as staunchly traditional as their parents were in 1969, they nonetheless are more traditional than they themselves were at 20. At 35, I was still a staunch Democrat; sometimes a stubborn fool remains fooled longer than others, but even a stubborn fool need not remain a fool forever.


  1. Roberta,
    Don't know Iowa's laws but my guess is that a constitutional amendment will be put on the ballot and the marriage issue will be decided by the voters. Just another example where the court writes laws that don't exist.

  2. To judge by the Memeorandum thread, as of 11:55 a.m., only liberal bloggers are commenting on the Iowa court decision.

    No wonder. No matter what arguments are made by conservatives, no matter how much the people wish to remain skeptical of modern-day social experimentation, no matter how ridiculous and inconstant the conclusions of the "social sciences", the result always seems to be the same: the courts side with the radicals. Those who disagree with the radicals are branded with all sorts of unlovely names.

    Bottom line: it's discouraging and utterly predictable. No wonder in the sea of liberal commenters, conservative bloggers are staying silent.

  3. Homphobia is dying along with the old fogies. It's not an elitist thing, it's a generational thing.

  4. Your update is even sillier than normal. This isn't the opinion of these "elites," (or, as we like to call it in the non-Freeper world educated people in the subject in which they speak) it's the examination of data.

    Now, I know your data comes from Leviticus, but I doubt you looked at anything more than what your political allies say.

  5. Robert: Actually, a huge majority in Iowa opposes full blown marriage rights.

    And I'm glad to see you getting over to the social conservative side of things!

  6. It is as I've said for some time, allowing gay marriage violates the principle of equal protection. I'm glad to see someone else take that position as well.

    As for the "desire" argument, well, there are plenty of things I really want to do that I cannot. For those who say that they should be alowed to marry whomever they want because they really want to, I ask if they'd be willing to extend that logic to my desire to have their stuff.

  7. The real fungibility problem here is not man and woman, but personal religious observance and state licensing procedure. The first amendment guarantees that any laws regarding marriage, are NOT laws regarding religion. Therefore anyone's right to call themselves married and act in accordance to their own personal beliefs of what constitutes marriage is a right which has not been infringed. Rather, what is altered by marriage definition laws are the standards by which licenses for government subsidy are issued. Equal protection ensures that everyone may APPLY for these licenses, and that all applicants are judged by the same criteria. But there is no "right" to be ISSUED a license.
    Or else the blind would be suing for their drivers licenses claiming violation of civil "rights" of the disabled.

  8. Had Marriage been simply kept as a Religious ceremony without legal implications, (or have created a separate contract that contained all the legally binding mumbo jumbo) we wouldn't be in this pickle. But no, we had to have marriage sanctioned by the government, after all, there's nothing like having the government enforcement to ensure that people you don't want to marry can't marry.

    How long did it take to get laws banning interracial marriage overturned? mmmmyep.

    As someone said, gay marriage is less a moral issue than a generational one. And you're on the wrong end of the generational divide.

    Perhaps more important to me, to me an activist judge adds laws, not removes them. Removing laws are what the judicial system does. if a law is unconstitutional, then it is unconstitutional. Claiming that it's activist to strike something down ignores the basic premise that the Constitution is the final arbiter of law in the respective state.

    I respect anyone who doesn't like it, but I've yet to see a cogent argument that somehow the decision was poorly written.

    And evidently the Iowa constitution is relatively easily amended. there's no super majority provision that I can see, so it should take too long to roll things back to where you feel they belong.

  9. "Activist" has nothing to do net gain or loss of legal text... it has to do with the faithfulness of ruling to the intent of laws and constitutions.

    "As someone said, gay marriage is less a moral issue than a generational one."

    This is true, but you fail to realize WHY it is a generational issue. Marriage exists as a licensed legal institution due to the inherent conservatism of the constitution to provide for the common welfare. The cultural underpinnings of our society have traditionally relied in large part upon a strong emphasis of the nuclear family. So the government relies on the status quo to ensure that future citizens face more-or-less the same upbringing and conditioning as their ancestors. Not because it is good, but because it is un-bad.
    A marriage license is a draconian legal contract that alters property rights and other legal obligations by the voluntary permission of the license applicants, designed as such to reinforce the tendency of the society as a whole (rather than specific couples) towards monogamy and fidelity. As such, this contract is incentivised by the well known marriage "benefits" joint filing taxes, inheritance, etc. These incentives have a net cost to the taxpayer, which the government justifies with its vested interest in societal continuation.
    You can argue subjectively that children raised in a hypothetical American cultural ethos where the nuclear family is unimportant would be at no disadvantage. But the truth is the results of such a culture shock to future generations would be unpredictable at best, likely regressive, and possibly catastrophic. Still, while taxpayers are funding these benefits, there is no justification for subsidizing those relationships which by their very nature can not provide for the public welfare of cultural perpetuation.
    Gay marriage is the exact opposite scenario with respect to the decriminalization of interracial marriage, which reinforced the value of the child bearing nuclear family.
    Still, the licensing procedure is an incentive structure, not compulsive. And there is no compulsion for gays to change their behavior or to abandon their committed relationships if they believe themselves to be "married" by their personal convictions of religion.
    Anyone who feels their marriage must be validated by a rubber stamp on a document and a refund check on April 15th in order to be legitimate or worthwhile... isn't really married to begin with.

  10. The Court actually anticipated your "gay people are as entitled to opposite-sex marriage as straight people" argument and tore it to pieces. Their own words:

    "It is true the marriage statute does not expressly prohibit gay and lesbian persons from marrying; it does, however, require that if they marry, it must be to someone of the opposite sex. Viewed in the complete context of marriage, including intimacy, civil marriage with a person of the opposite sex is as unappealing to a gay or lesbian person as civil marriage with a person of the same sex is to a heterosexual. Thus, the right of a gay or lesbian person under the marriage statute to enter into a civil marriage only with a person of the opposite sex is no right at all."

  11. And another thing, the anti-prop-8 sideshow is exactly the kind of activist crap we need to be wary of... If prop 8 is overturned, it sets the precedent that a court can rule a constitution unconstitutional, which is doubly paradoxic since the courts authority and guidance in ruling constitutionailty is derived from that unconstitutional constitution to begin with.

    You can expect a prop-8 style state constitutional amendement in Iowa in the near future... though their amendment procedure is more rigorous.

  12. "Thus, the right of a gay or lesbian person under the marriage statute to enter into a civil marriage only with a person of the opposite sex is no right at all."

    The right of ANY person to enter into a civil marriage with ANY other person is no right at all. The only rights that exist are those of equal protection which allow all persons to apply for and be judged upon the same criteria as other applicants FOR A LICENSE.

    It's amazing how many people do not understand what the word "right" means. Rights are not granted by government licensing procedures, they are inherent to human existence. The American legal system is founded upon the premise that rights are a non-overlapping attribute of individuals and not groups. If you have some concept that requires concessions from the rest of society at large, it can not, in and of itself, be a right.

  13. "Radicals" and "Activists" - Please. We are demanding what you already have - federal marriage equality.

    And here's the neat part - more and more gays and lesbians will NOT PAY A DIME to the I.R.S. until we have federal equality, which means that many of YOU fine folks have been paying my taxes since 2005. Thanks, and KEEP PAYING!

    We will resume tax compliance once the feds grow up. [equality tax revolt]

  14. So how long will it be before this country legalizes polygamy? I'd say in another 50 years or so. Assuming, of course, there even is a country called the United States of America then.

    And Ms. Dickerson left out another acceptable bigotry: Christophobia. Something we'll see even more of in the coming years. Of course it is no surprise that this wouldn't occur to the likes of Ms. Dickerson.

  15. Thus, the right of a gay or lesbian person under the marriage statute to enter into a civil marriage only with a person of the opposite sex is no right at all.

    That's tearing the argument to pieces? I'm not opposed to gay marriage (actually, I don't much care either way), but that's just weak.

    What does "wanting" a right (or not) have to do with be entitled to it? For example, we all have the right to free speech, even if some of us don't take advantage of it. Children have a "right" to a public education, even if they are sent to a private school.