Gay Marriage 2

The “mess” referred to below includes:  a) the fact that (for example) a gay couple who is legally married in say MA does not have SS survivors benefits because of DOMA, b)  whether a gay couple married in one state can have their marriage recognized in another state.

Prediction:  What will the Court do?

1.  They could declare that “the equal protection of the laws” principle of the 14^th amendment prohibits any restrictions of the rights of persons to marry.  This would include disallowing DOMA and removing from states the right to exclude homosexuals in their definition of marriage.  The conventional wisdom is that the courts want something less profound than this and that they will not do this.  Nearly impossible.

2.  They could declare DOMA unconstitutional and reaffirm the right of states to define marriage, leaving a mess.  Surely not. 

3.  They could declare DOMA unconstitutional and reaffirm the right of states to define marriage. Most likely.  Hopefully they would also direct the Federal Government to review its laws regarding marriage (Social Security et al) and to clean up the mess “with all deliberate speed”. 

4.  They could do 3 with the caveat that the Federal Government can, if it chooses, take to itself the right to define marriage and revise the laws relating to marriage accordingly.  Unlikely. 

Two and 3 are my least favorites.

Gay Marriage

First I would like to describe what I think the possibilities are and some of the consequences of some of the approaches that the court might take.

1. To “simply say that marriage is a matter for the states” is not possible because it is not “simple”.  Suppose a gay couple, married in another state, now lives in a state which does not recognize gay marriage.  That state is obligated by Article IV section 1 of the U S Constitution (Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.) to recognize the couple’s marriage.  However the state does not allow its own gay couples to get married so it is now in trouble with the 14^th Amendment’s “equal protection of the laws” clause.  So the Court may allow California’s prop 8 to stand, but if they do then they ought to do more.

2. The Defense of Marriage Act (DOMA) was, in part, to respond to 1. and it excludes the Federal Government from obligations that might follow from different laws about marriage in the states.  So, instead of SS giving marital rights to same sex couples in states that have gay marriage and not giving marital rights to couples from states that do not, the SS just ignores any rights that such couples might claim. 

3.  In one sense, the simplest thing for the Court to do would be to declare that “the right to marry is fundamental” and the 14^th amendment (… No State shall … deny to any person within its jurisdiction the equal protection of the laws.  …) prohibits any restrictions of the rights of persons to marry.  This would include disallowing DOMA and removing from states the right to define marriage.  There are technical difficulties with this approach.  One would be about people being related to each other.  That is probably easy.  A second would be that if the Court declares, as some current commercials advocate, that a person should be able to marry anyone that they love, then the door is open to polygamy (and polyandry).  The court will not extend the rule to polygamy.  If the court went this way they would probably handle this exclusion (polygamy) issue by saying that “everybody knows that marriage is between two people”.  “Everybody knows” is not generally regarded as a powerful legal argument and in particular the Court would have just rejected the “everybody knows that marriage is between a man and a woman” argument.  There would be a logical coherence objection for the court here.

Another objection is that it would be a very far reaching decision.  The judges seem to be looking for a less profound resolution of the two cases.

4.  One last thing.  The “logical coherence” problem in the last point is a problem for a court, but it is not a problem for a legislature which is not under the same logical restraints as a court.

rights

When I was 10 years old in the the fifties I would have qualified for most of the "ists" around.

I made progress on sexism first and racism second.  The hardest has been an acceptance of homosexuality.

Tomorrow - The Supreme Court and gay marriage.

The Best Exotic Marigold Hotel

The Best Exotic Marigold Hotel is a good movie.  As Wiki notes, it is somewhat predictable.  Probably would not appeal to the younger set.  (In this case, that means anyone not eligible for Medicare.)

For reasons mostly financial, a group of English "seniors" head out to retire in India.  Mostly we see their frustrations with dealing with the Indians.  However, one of them uttered a line that I found quite thought provoking:  (it was approximately)

"What I like about these people is that they view life as a privilege and not as a right."

My  first reaction was to wonder how would that affect one's attitudes?  I supposed that it would make you much  more appreciative of whatever you have, even if it is not as much as you would like.  I then supposed that it would make you more open to new experiences.

Suddenly I was overcome by a feeling of philosophical shame.  What would Jefferson say?  Life is not a right to which I am endowed by my creator (either aninmate or inanimate)?  Life is a privilege for which I am to thank whom?  Lord Krishna? 

I think I will be able to work this out, but I'll have to think about it some.  

Maybe life is a privilege and the ability to live it as one chooses is the "right".

Or maybe I'll just go with Jefferson.

Voter ID 2

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Perhaps this should be subtitled "Things you get from the government."

All politics aside, I guess I am in favor of the following rule:


Rule I  If you  have a right to or are entitled to get something from the government, then you should be prepared to prove that you are eligible for it.  

It doesn't make me any difference whether it is a welfare check, tax "loophole", or the right to vote.

Rule II     Since voting is constitutionally fundamental it should get special treatment.  The state is obligated to provide for the cost free  acquisition of a suitable ID for the individual.  Otherwise you have overtones (if not the reality of) a poll tax.

The arguments against this which are based on: "Poor ole granny doesn't have a picture ID." , seem silly to me. They do have an lot of emotional appeal, but they go right down the drain in the face of rule II.

PS  Since rule two would require a bit of time to implement, you can't do one of these things just before an election.

Lochner v New York

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To see a conservative view of this decision go to George Will on Lochner.

Changes in attitude

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The rate of change in America's attitude toward same sex marriage is truly phenomenal.
See this article from the NYT.

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Healthcare 2 - another view

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Vince offered a different point of view on national health care the other day. Since the original post was so long ago June 11, 2010, I thought that I would just put Vince's comment up here as a new post.

There is a central point that is generally ignored by those who favor National Heath Care. Here, a maxim from the philosophy of Libertarianism is needed.

There can never be a right to health care. Any so-called right whose implementation is dependent on the seizure of money or property from one man to another can never be right. It is nothing less that inflicting slavery and tyranny upon one man from another.

To put it simply, if you come to my house carrying near lifeless, sick child in your arms, I will do my best to give what I can and seek to raise the rest from the voluntary charity of others.

But if you come with the determination to take by force, if necessary, what is needed to save that child, you are no better than a common thief and robber and should be treated accordingly.

Despite the slow poison of government interference, (i.e. Medicare and Medicaid), what is left of the free market in medicine in this country has produced the highest quality medical care in all human memory.

Problems of access can only be solved by the slow elimination of all price distortions of government granted health care and a return to the original principles of the free market.

If you scoff at what you might say as simplistic solutions, go to the Cato Institute. There you will find detail plans, showing what a true free market in medical care would look like.

Vince, March 16, 2011

First amendment parallels.

The media’s response to Obama’s remarks about the mosque is a beautiful parallel to their response to the Arizona immigration bill.
The AZ bill said that it would apply only in limited circumstances. The media reported that it was a profiling law. AZ explicitly eliminated profiling. The media reported that it was a profiling law.
Obama said Muslims had a right to build a mosque. The media reported that he supported building it. Obama said he supported the right to build. The media reported that he supported building it.
It is not just freedom of religion that cannot choose whom it protects. Freedom of the press is stuck too.