The Rule of Law? Eh.

This is a post about process.  Boring, I know.  You'd rather be talking about conclusions.  You'd rather be arguing right and wrong.  You'd rather be debating ends, not means.  (God knows I would.) 

But this is a post about process.  Because process -- boring,  banal, bureaucratic process -- is what's really important.  If you want to do this you must do it that way.  No, you may not jump to the head of the line.  Yes, you must fill out the form in triplicate.  Civilization is life measured in coffee spoons; and this is, on the whole, a good thing.

(But it's also why, if you're wondering, civilization makes the artist in us despair.)

I've written on this subject before.  In posts that annoyed nearly everyone, I argued for gay marriage but against finding a "right" to gay marriage in the Constitution.  It is annoying, I agree.  Much better would be for me to simply decree that gays should be allowed to marry and be done with it.  But that's not process; that's not playing by the rules or tradition.  That's making it up as you go along and, when the next guy comes along, who's to say he doesn't make it worse?  So the means matter.  They matter as much as -- and sometimes more than -- the ends.

But I don't come here to fight old fights.  Or to talk about the process being done (or not done) to poor Ms. Schiavo.  I'm here to discuss another abuse of process that is right now happening.  I want to stop the cheering (for there undoubtably will be some) before it begins.

The North Carolina congressman who represents Camp Lejeune introduced legislation that would dismiss all charges against 2nd Lt. Ilario G. Pantano, the Marine who allegedly wrongfully shot two Iraqis while deployed to Iraq a year ago.

House Resolution 167, introduced by Rep. Walter B. Jones, R, states that Pantano, 33, was “defending the cause of freedom, democracy and liberty” in his actions on April 15 that resulted in the deaths of two Iraqis.

....

Pantano is charged with premeditated murder and other violations of the Uniform Code of Military Justice. He has been transferred to the 6th Marine Regiment as he awaits an Article 32 hearing on the charges in April.

I understand the motives behind this Congressman's actions.  Undoubtably, they include both the noble and the cynical.  There is also grave danger in applying post hoc standards to the imminence of combat and criminalizing the ordinary work of soldiers.

But for Pete's sake:  If this story is accurate, Representative Jones is a freaking idiot.  Courts, not Congress, decide guilt and innocence.  For Congress to continue to intrude in the functioning of the Courts to save their pet cases is the grossest abuse of power, the ugliest expression of overreach. 

It shouldn't be a hard thing to understand.  It's time for the wise fools in Congress to stand up, and end this nonsense.

Comments

[Phil]

The argument that a law can discriminate against both men and women, pretty much equally, isn't an argument that discrimination based on sex is taking place.

Isn't this pretty much exactly the argument that was made in Loving? That since the law prevented both blacks and whites from miscegenating, that it wasn't really discriminating at all?

[Slartibartfast]

If a minority has to lobby for protections to be legislated, it implies that no protections exist and they have to be created.

Not saying that at all, LJ.

Let me try to summarize, here:

1) Marriage, by itself, doesn't confer any more or less protection on individuals.

2) There are other laws that benefit married people more than others.

3) If 1) and 2) are true, then the issue is not with marriage by itself, but rather with those laws that confer benefits on the married.

4) Regardless of the truth of any of the above, legislation from the bench is not going to fly, period. If existing laws are unconstitutional, they should be overturned, not modified by the courts.

You may argue that after gay people are granted such rights through legislation, there's no one else to grant such rights to

Ummm...I may not argue that. And if I were, would that be such a bad thing? Or maybe I misunderstood you; maybe you were thinking that hey, now we're discriminating against single people, people who are in a committed relationship but unwilling to formalize the arrangement, and the set of all other people. Well, this is a point that I've been considering, but I haven't formed any conclusions yet. It all depends on why you think the laws conferring benefits on the married were made, and whether you agree with those intentions, and whether those intentions are further served by widening the scope of those laws without making them all-inclusive. Not having figured out much of the preceding, I'm a little hesitant to advance any sort of argument.

[Slartibartfast]

And if I were, would that be such a bad thing?

Ack. What I meant was, would it be a bad thing if there were no one left to offer those protections to? But it didn't come out that way.

[Jesurgislac]

Slarti: 1) Marriage, by itself, doesn't confer any more or less protection on individuals.

2) There are other laws that benefit married people more than others.

3) If 1) and 2) are true, then the issue is not with marriage by itself, but rather with those laws that confer benefits on the married.

You're dancing on the head of a pin again.

There are laws that confer benefits only on married people (apparently, in the US, there are just over 1000 federal benefits for married couples). "Marriage", if you want to be philosophical about it, does not intrinsically confer these benefits, but in point of fact a married couple in the US automatically gets all these benefits as if they were intrinsic to marriage.

Except, of course, if the married couple consists of two people of the same sex. Then they don't, because federal law discriminates against gay people.

[Slartibartfast]

"Marriage", if you want to be philosophical about it, does not intrinsically confer these benefits, but in point of fact a married couple in the US automatically gets all these benefits as if they were intrinsic to marriage.

Which is pretty much what I've been saying all along. Nice of you to take notice, finally.

Except, of course, if the married couple consists of two people of the same sex. Then they don't, because federal law discriminates against gay people.

So, there's gay marriage without any of the perks? How'd that happen?

[Jesurgislac]

Which is pretty much what I've been saying all along. Nice of you to take notice, finally.

Slarti, just a tiny point. If it takes a long time and a lot of discussion for several people to figure out what you're trying to say, it may just be that you're not saying what you're trying to say very clearly, not that none of the people discussing it with you are paying attention.

So, there's gay marriage without any of the perks? How'd that happen?

Is this a serious question? I can outline the legislative history of how it happens that there are gay married couples in the US who are denied access to the federal benefits of marriage because of discriminatory legislation, but I kinda assumed it was common knowledge.

[liberal japonicus]

This slipped off the front page, so I lost track of it, but thanks, Slart for addressing my point. I still think you are confounding a practical approach with what the ideal (cf your 12:25)

You asked about my assertion of there being no one left to discriminate against, and I'm not positive about the point I was trying to get across, but I have a vague recollection that this was related to Santorum's slippery slope of gay marriage leading to bestiality, though I can't really see what I was thinking.

[Slartibartfast]

it may just be that you're not saying what you're trying to say very clearly

This is probably the case, but I'm doing the best that I can. Having people simply make up what my position is, though, doesn't help things any.

I can outline the legislative history of

Not asking for the history, just the present state.

[liberal japonicus]

Not asking for the history, just the present state.

I believe that there are churches that are willing to and do consecrate gay marriages, but the government refuses to recognize them. The Episcopal church has consecrated an openly gay bishop, and in the Hawaii state case,Baehr v Miike, I believe that Soka Gakkai argued for same-sex marriages because they perform them (I believe that it is the main Buddhist sect in Hawaii, taking into account what 'main' means and they joined the case in response to the Mormon church asking to be a co-defendant with the state opposing gay marriage) Thus, there are, as Jes points out, gay 'married' couples that are not able to access the benefits that marriage would normally provide. So this would be, 'gay marriage without the perks'.

[Slartibartfast]

but the government refuses to recognize them

Ah, so it's not a legal marriage. No surprise, then, that the side benefits available to legally married couples don't follow.

My mother, incidentally, is married but not legally married. She and her husband swapped powers of attorney, etc. There are some really good reasons why one should avoid legal marriage, particularly late in life.