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April 08, 2009

Comments

Whattaya want to talk about?

Capture of externalities. You know what's really boring? Rate-setting meetings for water and wastewater special districts. People absolutely HATE paying the taxes needed to keep clean water coming in and sewage being taken away and properly treated.

So, we have choices. We can poison ourselves and our rivers. We can pay the necessary cost of treatment of the current discharges. Or we can engage in technology-forcing regulatory actions that keep taxes down while preserving the environment by changing the nature of the discharge. (The Clean Water Act is, not surprisingly, full of the third option.)

The fact that TM is on the side of the *ssholes who want to keep dumping externalities into the environment doesn't surprise me at all.

Let's discuss the moral hazard of deathbed conversions!

I hate rap with a blazing indifference. Diff'rent strokes, I know.

You know what I really hate with a blazing passion? People who are chatting on the phone while they're driving. People who are friggin' texting while driving. I've even seen people reading the newspaper while driving.

Cut it out and drive. You're doing it wrong.

This Ted Stevens thing really has me worked up. On one hand, we have the high odds of his actual corruption, certainly in spirit, based on the usual Senator's job of pleasing his constituents and bringing in lucrative business to his state. On the other hand, there's the high odds of prosecutorial overreach, certainly in spirit, based on the usual legal business of prosecution, that is, indicting perceived wrongdoers for public approval.

So who do I root against here? My prejudices are tender, fragile things.

Yup, they did it the right way in Vermont. Can't argue that there's anything wrong with what happened there, representative democracy in action.

Keifus, we've already got Stevens out of office, now we can get a corrupt prosecutor out, too. That's a win win as far as I'm concerned.

You know what I really hate with a blazing passion? People who are chatting on the phone while they're driving. People who are friggin' texting while driving. I've even seen people reading the newspaper while driving.

Replace 'driving' with 'walking' and there is an equally viable complaint.

Keifus, we've already got Stevens out of office, now we can get a corrupt prosecutor out, too. That's a win win as far as I'm concerned.

Agree with Brett 100%.

Finally, congratulations to Vermont for passing gay marriage. Probably the best thing that has happened or will happen this year. The fact that Vermont did it the "right way" -- democratically, not by judicial order -- makes success even sweeter. If you have the better argument (and gay marriage proponents do), win the argument by convincing your fellow citizens. Don't just convince a handful of judges. You leave your opponents no outs this way: they either accept defeat in principled fashion, as Rod Dreher does, or they reveal themselves to be without principle.

Heh. I would call it the best way and the most practical way, and the way most likely to stick.

while i don't hate them, i'm always amazed by people who talk on the phone while in a public bathroom.

i once heard a man breaking up with his SO, telling her how inconsiderate she is towards him, while standing at a urinal.

The fact that Vermont did it the "right way" -- democratically, not by judicial order -- makes success even sweeter.

I don't understand what you're talking about here. VT did not pass a referendum; the legislature acted. People in VT convinced legislators not their fellow citizens. How is an elected legislature any more democratic than Iowa's elected judges?

Replace 'driving' with 'walking' and there is an equally viable complaint.

Most walkers are not commanding four tons of metal when they walk. That makes things a bit different which makes the complaint less viable. Would you like to compare the death rates associated with impaired walkers versus drivers? Would you care to speculate on why drunk driving has racked up far more victims than drunk walking?

Four tons is a lot. That's a Hummer H1.

I've had many accidents while drunk walking; none of them fatal. Yet.

Jeez turbo, I was just being tongue in cheek

So we should have waited for the Southern states to overturn their Jim Crow laws through legislative action?

I'm happy for Vermont, DC, and very proud of Iowa, my home state.

I'm amazed by the people who feel the need to be in continuous contact with others, too. One of the things I enjoy about long distance driving is the isolation.

First, I entirely disagree that Vermont 'did it the right way.'
I'm glad they passed gay marriage, I'm glad they did it by vote of the legislature, if only to lessen -- not eliminate -- the 'activist judges' nonsense.

But, people's rights should NEVER be decided by 'majority vote.' Or even by a 'gift of the legislature.'

That's the whole idea behind having a "Bill of Rights." Nobody expressing a popular idea is in danger of having his speech restricted. It only counts when you defend someone whose ideas are hateful to you.

And, von, do you think that, absent the Loving decision, all states would have abandoned their opposition to 'miscegenation'?

On another topic, today's headline in the NY Daily NEWS about a Yankee relief pitcher 'pulling a Mel Gibson' after getting arrested for DUI highlights one way of, maybe, making this less 'acceptable.'

Sports really can make an impact, and I wish teams would institute a policy that anyone involved with a team who is convicted for DUI should be suspended -- without pay -- for 15 days, and that includes managers, executives, scouts, etc.

I'd also like to see a tv show have a main character missing from the show for a couple of weeks because of a DUI bust that included jail time, and the future development of the character be shown affected by the sentence.

"That's the whole idea behind having a "Bill of Rights.""

Which, as it happened, was adopted democratically, rather than by judicial fiat.

The problem with judges doing good by fiat, is that if they're allowed to make policy that way, they're just as capable of doing evil by fiat.

The democratic process may frequently result in oppression of the minority by the majority, (Which is why I think as much of our life as possible should be out of the government's reach, period.) but oligarchy can result in oppression of the majority by the minority, which is at least statistically worse. And rule by judges is just as much oligarchy as rule by any other clique.

And rule by judges is just as much oligarchy as rule by any other clique.

This is, pound for pound, quite possibly the most ridiculous thing Brett has ever said in comments, and that says quite a bit. Particularly considering that he lives in a system where the majority of judges are democratically elected.

The fact that Vermont did it the "right way" -- democratically, not by judicial order -- makes success even sweeter.

Yeah, because it's just wrong for citizens to use the courts to protect their civil rights. There speaks the corporate lawyer. (What branch of law are you in, Von?)"

Prup (aka Jim Benton), and while we're at it, why don't we also inflict jail time, public humiliation and job consequences on people who talk on cell phones while driving, which has been shown to be at least as destructive as being over the limit.

Two questions for you Brett -

1) Is the elected legislature more or less of an oligarchy than an elected judicial branch? Why?

2) Is heterosexual marriage a natural right that cannot be justly granted nor revoked by a legislature? Please explain how this answer changes for homosexual marriage, if it does.

Damn those evil corporations for making consumers want products that consumers actually like.

Whatever.

People are apparently willing to kill all the damned fish in a river in order to have squeaky clean plates. The corporations that make the soap are the least part of the problem.

When we use this planet up, we don't get another one. We got no other place to go, folks.

A suggestion to the folks who live in Spokane:

Give your dishes a quick once over with a scrub brush and some hot water before you put them in the washer.

You could even wash them by hand, if it came to that.

The epitaph of the human race will be "Too lazy to live".

The problem with judges doing good by fiat, is that if they're allowed to make policy that way, they're just as capable of doing evil by fiat.

The democratic process may frequently result in oppression of the minority by the majority, (Which is why I think as much of our life as possible should be out of the government's reach, period.) but oligarchy can result in oppression of the majority by the minority, which is at least statistically worse. And rule by judges is just as much oligarchy as rule by any other clique.

You're paying lip service to the tyranny of the majority here.

Given the long history of trampling of rights by the majority on the minority (in a wide variety of areas), I think your point is ill made and powerless. Even excluding the very real history, it's a rather facile and tautological point, which says very little.

Damn those evil corporations for making consumers want products that consumers actually like.

What? You want to kill the salmon industry up here? That's a kinda major business....

"Finally, congratulations to Vermont for passing gay marriage. Probably the best thing that has happened or will happen this year. The fact that Vermont did it the "right way" -- democratically, not by judicial order -- makes success even sweeter. If you have the better argument (and gay marriage proponents do), win the argument by convincing your fellow citizens. Don't just convince a handful of judges. You leave your opponents no outs this way: they either accept defeat in principled fashion, as Rod Dreher does, or they reveal themselves to be without principle."

Whose up for putting Von's marriage to a popular vote?

And also - coming from a heterosexual married man, Von's sneer at the freedom to marry established in Massachusetts, Connecticut, Iowa, and temporarilly in California, as somehow a sour success, is really ugly.

It's genuinely nasty of Von to feel that other people should only be treated equally if they get their rights in a way he - unaffected by this particular discrimination - is willing to approve of.

Of course, Brett is just like Von in this respect. But Brett's sneering and nastiness is something I expect - Von's comes from someone who has in the past claimed to support equal rights for LGBT people, and who would doubtless call himself an "ally", even though demonstrably a backstabbing one.

So, what you're basically saying is that von doesn't support equal rights for LGBT people in a way you approve of?

Wonkie, Prup, et al.: The example of the Loving decision and the Civil Rights Movement supports my point. The people did express their desires in both cases by passing Constitutional Amendments (and laws) forbidding discrimination. It was an unelected Supreme Court that then reversed those desires by judicial activitism .... and the problem wasn't corrected until the Supreme Court reversed itself once again.

Well, Slarti:

Either Von believes that citizens of the US shouldn't attempt to defend their civil rights via the courts, or he believes that LGBT people shouldn't attempt to defend their civil rights via the courts.

If the latter, plainly Von doesn't support equal rights for LGBT people.

If the former, plainly Von doesn't support equal rights.

Eric, sorry for jumping down your throat.

Slarti, until von can explain why elected legislators are significantly more democratic than elected judges, it will be hard for me to understand his preference for legislative over judicial victories as anything but a preference for fewer gay marriage victories in practice.

Whose up for putting Von's marriage to a popular vote?

I'd lose!

And also - coming from a heterosexual married man, Von's sneer at the freedom to marry established in Massachusetts, Connecticut, Iowa, and temporarilly in California, as somehow a sour success, is really ugly.

It's genuinely nasty of Von to feel that other people should only be treated equally if they get their rights in a way he - unaffected by this particular discrimination - is willing to approve of.

Where did I sneer at those decisions? I'm happy whenever gay marriage is allowed. It's the right thing to do as a moral matter. But I don't think that the procedure is the correct one and, as I sometime repeat (and repeat and repeat), process matters. We (I) rejoice in a right result, but that doesn't mean that we (I) should ignore a wrong process.

"Drum claims that the detergent industry "just didn't feel like" selling phosphorous-free detergent. The first hint that industry might be motivated by consumer demand and not feelings?"

Err, the Swiss have been using phosphate-free detergents since 1986. The Czechs since 2000. This is no big deal, and the industry has been discussing it for a decade-and-a-half. Maguire completely misinterprets the toxicology paper he links to, which is discussing the mild occupational hazards of zeolites, not the environmental hazards. Also, he links to a consumer reports article which indicates the phosphate-free detergents did just as good a job as the phosphate-containing detergents.

Unlike nitrate removal (only mildly risibly expensive), phosphate removal at the sewage treatment plant is eye-poppingly ludriously expensive. Removing it at the source is the way to go.

Anyway, I think it'd be great if phosphates in detergents became another article of wingnut fetish, like denial of Anthropogenic Global Warming, Macroevolution, and Stem Cell Research. There's still a few scientists left who vote GOP, and this might put them over the edge into the Dem camp.

Perhaps Von would agree to substitute "the best way" for "the right way"? I could agree with that, because it makes it harder for the losers to complain.

Where did I sneer at those decisions?

In the fifth paragraph of this post.

I'm happy whenever gay marriage is allowed.

Then why complain about it?

But I don't think that the procedure is the correct one and, as I sometime repeat (and repeat and repeat), process matters

You really think it's not "correct" for LGBT people to access their civil rights via the courts?

Or you think it's not "correct" for anyone to access their civil rights via the courts?

We (I) rejoice in a right result, but that doesn't mean that we (I) should ignore a wrong process.

Well, Von, if you want to argue that it's wrong for LGBT people to be able to make their case for equal treatment under the law in court, you're certainly not an ally: you're a moderate enemy. Regardless of your claims to be "happy" about people whose rights you disparage in this way.

But I don't think that the procedure is the correct one

von, I'm still waiting for you to explain why actions taken by an elected legislature are more legitimate than those taken by an elected judiciary.

Perhaps Von would agree to substitute "the best way" for "the right way"? I could agree with that, because it makes it harder for the losers to complain.

But it doesn't actually make it harder for the losers to complain! Losers will complain no matter what the process is because they dislike the substantiative outcome. They do not want gays to marry. The vast majority of people neither know nor care about process issues; I mean really, given how many anti-same-sex-marriage folk believe that gay marriage will usher in a new era where churches can be forced to marry gays by the state, does anyone believe that a sophisticated understanding of legal process is the real sticking point here? Does anyone think that there won't be just as much of an outcry in VT as there was in MA or IA?

If you want to argue that this is a better way because it keeps the tiny fraction of people that understand and care about process issues happy, then go ahead, but don't pretend that this is a large group of people.

But I don't think that the procedure is the correct one and, as I sometime repeat (and repeat and repeat), process matters. We (I) rejoice in a right result, but that doesn't mean that we (I) should ignore a wrong process.

What do you mean by the procedure not being the "correct" one?

I mean, is this a purely practical concern, that legislative or popular decisions would be smoother, while judicial decisions will result in less acceptance of the idea in at least the short and medium term (as I've seen argued of the Roe decision)?

This is the most charitable interpretation I can give it, but of course the word "correct" suggests something else, i.e., that you mean that as a matter of principal the judicial branch should not be allowed to make civil rights rulings. (At all? Only when it overrides an ostensible popular majority? Only when it affects gay people? How does that not render the concept of civil rights meaningless?)

So, Von, would you object to a judicial decision overturning, say, a handgun ban as the "wrong way" to secure second amendment rights? Or a judicial decision stopping an election recount as the "wrong way" to secure an election outcome?

In general, I agree with you that process matters. I just can't fathom your hostility to the process of judicial review. Do you object to every counter-majoritarian features of of government (e.g., the filibuster, the malapportionment of the Senate)? Do you object to every governmental decision and action taken by agents not directly elected (e.g., the setting of interest rates by the Fed)? What makes judicial review so special?

jack: I mean, is this a purely practical concern, that legislative or popular decisions would be smoother, while judicial decisions will result in less acceptance of the idea in at least the short and medium term (as I've seen argued of the Roe decision)?

Yeah, but as with objections to same-sex marriage, objections to Roe come primarily from people who don't like women having the right to choose abortion.

Practically speaking, too, it doesn't really matter how the decision is made: what scares the opponents of same-sex marriage is how fast public acceptance of same-sex marriage happens once it is legal. Bigots who scream about the sky falling find people don't listen when they can see for themselves that the sky isn't.

what scares the opponents of same-sex marriage is how fast public acceptance of same-sex marriage happens once it is legal

Right, and of course the argument about the popularity of court vs. popular decisions strikes me as fairly tautological: Popular decisions are popular. Counter-majoritarian decisions are counter-majoritarian. Whee.

Still, it's the best gloss I can figure to put on Von's comments.

von, I'm still waiting for you to explain why actions taken by an elected legislature are more legitimate than those taken by an elected judiciary.

The practical differences are real and probably sufficient to answer this question(e.g.: legislatures are elected more frequently; legislatures are elcted to represent particular consistuencies; legislatures are larger and thus more likely to reflect a consensus view). But the practical differences, though in my favor, aren't the best reason to prefer legislatures to elected judges. The best reason is role. We elect legislatures to make laws; to debate; to court public opinion; and to reflect the wishes of their constituencies. We elect judges to decide laws and, importantly, ask them not to show favor to their constituencies.

Indeed, think how much less powerful the Iowa decision would be had it not been for the acts of the legislature and governor that support it or accept it. Iowa could have been thrown into uproar by this decisison. It's not, and the reason is because of the legislative and executive branches -- not the judiciary.

Well, Von, if you want to argue that it's wrong for LGBT people to be able to make their case for equal treatment under the law in court, you're certainly not an ally: you're a moderate enemy. Regardless of your claims to be "happy" about people whose rights you disparage in this way.

Why? Is your view that the ends always justify the means?

In the fifth paragraph of this post.

I'm going to need a quote, because I'm not seeing it.

We elect legislatures to make laws; to debate; to court public opinion; and to reflect the wishes of their constituencies. We elect judges to decide laws and, importantly, ask them not to show favor to their constituencies.

So, basically the entire principal of judicial review and constitutional rights is out? Because "legislators make laws"?

And which judges exactly are showing favor to their constituencies when they make counter-majoritarian decisions in favor of the rights of a small minority of LGBT people?

legislatures are elected more frequently; legislatures are elcted to represent particular consistuencies; legislatures are larger and thus more likely to reflect a consensus view

So the consensus view is always the correct one? Even when it's a violation of civil rights?

The example of the Loving decision and the Civil Rights Movement supports my point. The people did express their desires in both cases by passing Constitutional Amendments (and laws) forbidding discrimination. It was an unelected Supreme Court that then reversed those desires by judicial activitism .... and the problem wasn't corrected until the Supreme Court reversed itself once again.

I'm don't follow this. Could you elaborate?

"Why? Is your view that the ends always justify the means?"

Yes. This is why I full agree with shooting every person who disagrees with the notion of homosexual marriage in the head, preferably with a pistol of a large enough caliber to ensure that a secondary shot is not needed.

No wait I don't. But I do believe that a legally available route is a legally available route. I may dislike it. I may advocate for a change to that route. But if that route is legally viable, then I will accept the choice, and work within the legally available framework.

Therefore, the use of any legally available mean justifies the restoration of a natural right that should not be abrogated by any legislature, executive, judicial decision or what have you.

I may dislike it.

Hater!

Hater!

Ayup. But it doesn't make it any less valid. My truth need not be anyone else's truth, and thus why I need to work to enshrine my truth in legislation.

"would you object to a judicial decision overturning, say, a handgun ban as the "wrong way" to secure second amendment rights?"

The very phrase, "second amendment rights", makes clear the implicit difference here: There actually is a 2nd amendment, so you don't have to make stuff up to end up overturning a gun ban. It's just ordinary judging.

The point here, whether or not you agree with it, is that SSM wasn't in the Constitution in the same way a right of the people to keep and bear arms was and is.

The practical differences are real and probably sufficient to answer this question(e.g.: legislatures are elected more frequently; legislatures are elcted to represent particular consistuencies; legislatures are larger and thus more likely to reflect a consensus view).

Legislators are dramatically more ignorant, more corrupt, and prone to demagoguery; they're not required to formally justify their reasoning in a written opinion so the quality of their decision making often suffers, etc. Clearly courts are the best forum for deciding these questions.

But the practical differences, though in my favor, aren't the best reason to prefer legislatures to elected judges. The best reason is role. We elect legislatures to make laws; to debate; to court public opinion; and to reflect the wishes of their constituencies. We elect judges to decide laws and, importantly, ask them not to show favor to their constituencies.

I don't know what you mean by role here. We do indeed expect that judges will show favor to their constituencies. There are even studies demonstrating that elected judges disproportionally favor their local constituencies at the expense of out of town parties.

Indeed, think how much less powerful the Iowa decision would be had it not been for the acts of the legislature and governor that support it or accept it. Iowa could have been thrown into uproar by this decisison. It's not, and the reason is because of the legislative and executive branches -- not the judiciary.

But here's the thing: courts are unlikely to make these decisions unless they have some confidence that the state won't be thrown into uproar. I mean, did you see lots of uproar in MA or CT or IA? Were there riots in the street? Shootings? Protestors taking over the court house? Of course not.

Brett-

From the Iowa Constitution:

ARTICLE I. BILL OF RIGHTS.

Rights of persons. SECTION 1. All men and women are, by nature, free and equal,


Damn those evil corporations for making consumers want products that consumers actually like.

Does this mean I can count on you to join my campaign for a marijuana brownie factory?

"So, what you're basically saying is that von doesn't support equal rights for LGBT people in a way you approve of?"

That's one way to put it, but I think it would be more apt to say that Jes, and others, understand von to be saying he only approves of equal rights for LGBT if they're granted in a way he approves of. That seems to me to be an accurate description of von's stance.

And another way of putting that is that von only supports equal rights for LGBT people in limited circumstances.

And it seems to me that that's a legitimate view, and a legitimate reason to take umbrage with Von.

"So, what you're basically saying is that von doesn't support equal rights for LGBT people in a way you approve of?"

That's one way to put it, but I think it would be more apt to say that Jes, and others, understand von to be saying he only approves of equal rights for LGBT if they're granted in a way he approves of. That seems to me to be an accurate description of von's stance.

And another way of putting that is that von only supports equal rights for LGBT people in limited circumstances.

And it seems to me that that's a legitimate view, and a legitimate reason to take umbrage with Von.

Brett - in response to your 2nd Amendment response:

1) Is heterosexual marriage a natural right, as protected under the Constitution (choose the Amendment as appropriate, that's what the 10th Amendment is there for), that cannot be justly granted nor revoked by a legislature?

1a) If it is, what is the difference between heterosexual and homosexual marriage?

If you answer "No it isn't protected as a Constitutional right" that's perfectly fine answer in my observation, I'll disagree with you, but I disagree with a lot of people. :)

"If you have the better argument (and gay marriage proponents do), win the argument by convincing your fellow citizens. Don't just convince a handful of judges."

Was Brown v Board of Education wrongly decided? DC v Heller? If you don't want guns banned, all you have to do is convince your fellow citizens, right?

I like a lot of the stuff you write, but this is just pure conservative bullshit.

That's one way to put it, but I think it would be more apt to say that Jes, and others, understand von to be saying he only approves of equal rights for LGBT if they're granted in a way he approves of. That seems to me to be an accurate description of von's stance.

That's not an accurate description of my stance. I approve of gay marriages however they're granted.

Von, but you believe there is a correct and incorrect way to grant them, versus an ideal and less than ideal way to grant them?

I'm don't follow this. Could you elaborate?

Roughly: Plessy v. Ferguson was wrongly decided under the text, context, and history of the 14th Amendment. Brown v. Bd. of Education was correctly decided under the text, context, and history of the 14th Amendment. That's what I meant when I wrote:

The example of the Loving decision and the Civil Rights Movement supports my point. The people did express their desires in both cases by passing Constitutional Amendments (and laws) forbidding discrimination. It was an unelected Supreme Court that then reversed those desires by judicial activitism .... and the problem wasn't corrected until the Supreme Court reversed itself once again.

Was Brown v Board of Education wrongly decided?

No, as I write above, it was correctly decided.

That seems to me to be an accurate description of von's stance.

Sure, if you're inclined to read extra words into von's statements. It's not, however, what he said.

I interpret what he said as something like I support gay marriage, but have a definite preference for the means by which gay marriage is legalized, which is I think more consistent with what he actually said.

Still, I wouldn't take it as a given until he said that's more or less correct. I actually think it's rather discourteous to verbally bludgeon folks for things they haven't said, claiming that they did say them.

DDT was what the customer wanted. Also I don't think Kevin Drum is wrong companies do all sorts of counterproductive things.

Von, but you believe there is a correct and incorrect way to grant them, versus an ideal and less than ideal way to grant them?

I don't speak to the legal merits of, e.g., the Iowa Supreme Court's decision because I haven't analyzed the issue & don't know the Iowa Constitution. It is my view that the 14th Amendment to the U.S. Constitution, however, is an inadequate basis for judicial ruling that authorizes gay marriage -- given the law as it stands today and the plausible context in which such a legal challenge might arise. (Obviously, all court cases are situational.)

This does not mean, however, that I view the marriages to be illegitimate. Indeed, in some senses, I view gay marriages to be fully legitimate today everywhere, in the sense that I don't distinguish between types of marriages in my personal life. But I also view gay marriages as legitimate under the law however the issue is decided (by court or legislature). Believing that a case is wrongly decided under the law is not the same as viewing that the result of the case is illegitimate.

Also I don't think Kevin Drum is wrong companies do all sorts of counterproductive things.

No, he's wrong for assuming that companies are doing counterproductive things because they feel like it.

A more charitable reading of von's position, IMO at least, is that he supports equal rights for LGBT people but believes that certain approaches to securing those rights are unacceptably brittle: Prop 8 being an example of how a media blitz can essentially undo a judicial decision, and make subsequent securing of those rights much harder.

Right now, some conservatives are hoping that the US Supreme Court rules on the issue and grants marriage rights, specifically so they can harness backlash to get an amendment passed explicitly defining same-sex marriage out of existence.

Now, everyone knows that explicitly legalizing same sex marriages nationally would cause a ruckus just as much as a Supreme Court ruling. I'm going to bet that some conservatives would argue the court should strike such a law down, unless it was an explicit constitutional amendment. They would probably argue that it was a case of a liberal elite in Washington trying to legislate away thousands of years of morality, and that voters should rise up to elect conservativer conservatives, etc etc.

But von's point still stands: the windmill would be much harder to tilt at in the case of a legislative victory.

Thank you, I appreciate the clarification. I have a different set of governing values that (I believe) allows for more adaptive and interpretative understanding of rights enumerated under the Constitution and associated amendments, but I can understand you reasoning.

"That's not an accurate description of my stance. I approve of gay marriages however they're granted."

Good to know.

"But I also view gay marriages as legitimate under the law however the issue is decided (by court or legislature). Believing that a case is wrongly decided under the law is not the same as viewing that the result of the case is illegitimate."

Also good to know; thank you for clarifying, and correcting me.

I don't speak to the legal merits of, e.g., the Iowa Supreme Court's decision because I haven't analyzed the issue & don't know the Iowa Constitution.

I think the confusion arises here:

The fact that Vermont did it the "right way" -- democratically, not by judicial order -- makes success even sweeter.

Which to me clearly implies that judicial order is never the "right way". Especially in context, where the contrast clearly casts aspersions on the legitimacy of the decisions in the several states where the issue has been brought to the courts, most recently Iowa.

Perhaps you misspoke.

Companies might do things that seem to be in their short term benefits, while causing great longer-term harm to them and many others? That could NEVER happen! The Magic of the Market says so!

I have to agree with (my interpretation, anyway, of) von.

It would have been a good result if the California Supreme Court had invalidated Prop. 8, but an even better one in every way if the damned thing had lost at the polls.

To say it another way, it's a good thing when the courts impose justice; it's a wonderful thing when they don't need to.

Right now, some conservatives are hoping that the US Supreme Court rules on the issue and grants marriage rights, specifically so they can harness backlash to get an amendment passed explicitly defining same-sex marriage out of existence.

But many of these conservatives are ignorant and detached from reality. Like the one you cited for example. I don't think we should be listening to anyone who believes that legalizing SSM will cause churches will be required by the state to marry same sex people. I mean, this is like believing that right now, churches are required by the state to marry people who have been divorced. I'm not too worried about the hopes and plans of anyone that is so ludicrously ignorant.

Now, everyone knows that explicitly legalizing same sex marriages nationally would cause a ruckus just as much as a Supreme Court ruling.

I haven't seen any serious proposals for nationally legalizing SSM. I imagine that if purple space aliens blew up the Washington DC there would be quite a ruckus but I don't plan on worrying about that eventuality either.

But von's point still stands: the windmill would be much harder to tilt at in the case of a legislative victory.

I don't think von has ever made that point. And in any event, there is no reason to believe the countermobilization myth. There have been no significant negative consequences to judicial decisions in MA or NJ for example. Until you can point to some, there's no reason to believe that judicial victories are more problematic than legislative ones.

To say it another way, it's a good thing when the courts impose justice; it's a wonderful thing when they don't need to.

Well, I guess I can sort of go along with that, but I have mixed feelings.

I mean, sure, the alternate universe where majorities always do the right thing is a pretty wonderful place.

But in the real world the choice isn't usually "have equal protection upheld in the court" vs. "have a legislature or popular majority do the right thing".

Instead, it's "have the court enforce equal protection NOW" vs. "let the legislature and mob act out their bigoted prejudices for another generation or so".

I those last two, I think the former is clearly preferable, not just because of the timing, but also because of the precedent.

"Damn those evil corporations for making consumers want products that consumers actually like."

Von, I don't understand how this is different from making leaded gasoline, cheaper products through by just dumping pollutants into the air, groundsoil, and rivers, cheaper products via child labor, cheap pajamas that are combustible, and all sorts of other things that there's consumer demand for, but which society/our government has done away with for the common good.

Can you explain the difference, please? Thanks.

I found my reaction to my first reading of von's gay marriage paragraph to be pretty much what a lot of the people reacting negatively had.

Rereading it after reading the comment thread made me react more charitably, but I also realized the bits that triggered: "right way" (ok, whatever; it's in scare quotes), but also this paragraph:

If you have the better argument (and gay marriage proponents do), win the argument by convincing your fellow citizens. Don't just convince a handful of judges. You leave your opponents no outs this way: they either accept defeat in principled fashion, as Rod Dreher does, or they reveal themselves to be without principle.

This is confusing and ends up being a bit upsetting (and not by revealing anything about von, afaict).

There seem to be difference cases:

1) The law doesn't reasonably support your case, but you can get some judges to say it does (think, perhaps tendentiously, Bush vs. Gore).

2) The law does reasonably support your case, but its a bit of a judgement call, and you can get some judges to make the right call.

3) The law reasonably, even unambiguously, supports your case, you can get judges to rule so, but a lot of people will claim that it wasn't sound law and was the result of illegitmate, activist judging.

(There are other cases.)

In case 1, if you can convince your fellow citizens, fine. (Though that locution is a bit weird, as people pointed out --- convincing a legislature is not really more *or* less convincing of fellow citizens than convincing a judge. Both judges and legislators are fellow citizens. Convincing either doesn't necessarily reflect a convincing of a broad swath of society. Failing to convince a legislature and succeeding to convince judges might well track with the general sentiment of society. Cf. abortion.)

But what if you can't? What if you can only convince the legislature, or some judges? Frankly, I'd rather convince the judges to support my case: It's harder to overturn. You might be concerned with overall societal stability (e.g., enough of that might damage the necessary basic trust in societal institutions in enough of the populace to destabilize that society, e.g., civil war in the extreme). But one problem with that is that some of the destabilization is clearly "mere politics". And some is harassment. And some is terror. Consider a situation where lynching of blue eyed people was pretty clearly legal. Getting a judge to rule otherwise might contribute to societal instability and a backlash (and maybe a lynched judge). It is a reasonable judgement to go for it, I think. It's tricky, and there can be unintended side effects, but so too with inaction.

I trust that we all agree that with 3, it's totally ok to pursue your case. Tactically, you may try for more laws as well. Of course, even here you could point to situations where the hostile majority makes it imprudent for you to pursue your rights *by any means*.

I mean, if a gay basher is revealed to be unprinciple...er...so what? If anything in the last 8 years should have taught us is that there are loads of people with no shame, indeed, anti-shame. Indeed, there is a political party which has this as a guiding principle. Consider the filibuster as just one example.

So I end up with two problems with the paragraph. First with the "convincing your fellow citizens". This is just platitudinous without a broader discussion of problem fellow citizens. The second is with the supposed rewards "leaving yoru opponents no outs". Of course there are outs. And if the pain is their revealing themselves unprincipled...er..so?

Actually, there's one other problem: Why say this in this context? I mean, it's a time of celebration. von could support his view with praise rather than include some text which seems to be a chiding and has sorta obnoxious echos. He could have just praised the legislature to the skies! He could have just celebrated it. But instead, he turned it into a continuation of a tactical argument that can be read, easily, as saying that people who won legal victories for their rights were illegitimate. I think, to act in the best way possible, it would be better to not allow the *possibility* of that reading or those hurt feelings.

Isn't there enough time, and web space, to raise it later?

(And I know it's a blog post, so whatev. But differences in off the cuff reactions can have unintended reactions. It's up to von to consider whether reacting the way he did has the broad effects, intended and unintended, that he wanted. But I don't think it's right to say that people "shouldn't" react in a hurt way or end up reading it more negatively that the words or the intent support.)

The most eloquent thing von could have written, I think, would have been just:

Finally, congratulations to Vermont for passing gay marriage. Probably the best thing that has happened or will happen this year.

That, indeed, would have been awesome.

Von, I don't understand how this is different from making leaded gasoline, cheaper products through by just dumping pollutants into the air, groundsoil, and rivers, cheaper products via child labor, cheap pajamas that are combustible, and all sorts of other things that there's consumer demand for, but which society/our government has done away with for the common good.

Can you explain the difference, please? Thanks.

If I recall right, one of the reasons to get rid of phosphates is that it encourages algae and plant growth that interfere with spawning salmon (hence my comment above about the salmon industry).

Mike Schilling: it's a good thing when the courts impose justice; it's a wonderful thing when they don't need to.

Nicely said! And the country is moving toward wonderfulness in marriage equality, by fits and starts.

So much so that the self-styled, self-promoting opportunist Rick Warren is outright lying (on the Larry King show) about his own role in opposing gay marriage and supporting prop H8 in California. Awe-inspiring levels of brazenness.

Gary: of course there is no difference.

People like TM and, to a lesser extent, Von want it all. They want low taxes, minimal government regulation, clean water, cheap salmon in the supermarket, abundant runs for their fishing vacations, whiter whites and sparkling clean dishes with no effort on their part.

When told that they can't have it all, they whine. Brett Bellmore complains that he doesn't recognize this country any more. Conservatives b*tch ferociously about the evils of the regulatory state. Michelle Malkin tries to organize "tea-bagging" parties. (where's dan savage when you need him?)

It's all just infantile. The entire modern conservative movement seems to me to be organized around the principle that 2 year olds are right and adults are wrong. You can have everything you want. There are no limits to American consumerism. The almighty Market will provide.

Now, I don't have kids so I'm in no position to give authoritative advice on dealing with 2 year olds. But from what I see there are essentially two approaches. You can talk to them like very young adults and explain that their decisions have consequences. When they still insist on stamping their feet and yelling, you tell them to grow up and be quiet, and you end debate.

Witness the Obama Admin. He's already tried and exhausted option 1 and is now moving briskly to option 2.

How about this analogy: moral philosophers are like sports trainers. They use careful reasoning and abstract theories to improve performance, developing better skills and habits that will lead to better intuitions and better 'snap' judgments by agents.

Sometimes that process involves developing explicit rules, like "stay on your toes when waiting for the serve", or "do unto others as you would have them do unto you". But the goal is better performance; the theoretical work is a means to that end.

Notice that in both cases the theoretical work can also justify or correct the intuitive judgments -- a trainer knows why certain techniques and habits work best, given human physiology, just as a moral philosopher knows why the Golden Rule helps people avoid wrong-doing, given human nature and the most general moral requirements on us.

An important difference is that the sports trainer knows the end, and is only thinking about the best means, while the purpose of moral philosophy is to determine the proper end (and if there are side constraints on how to achieve any ends). Venus' intuition is about the best means to making the shot, not about the proper end of tennis.

So I agree with Hilzoy's suggestion that the math analogy ultimately fits better. The intuition in the math case is about mathematical truth, with theoretical reasoning serving to justify or correct that intuition through formal proof. Same for moral intuitions -- we take them to identify what would really be good or right or virtuous, but a little anthropology or history makes us want to justify or correct them with a bit of moral philosophy.

The problem is it's harder for non-mathematicions to see how formal proofs or math theory could help train intuition. And it's also hard for many of us to see how there could be objectively correct answers about ultimate ends for moral philosophy to discover.

So I think the sports trainer analogy does the better job of dealing with Will's question of how theory could possibly matter to practice, when practice is driven by intuition and snap judgments.

Damn those evil corporations for making consumers want products that consumers actually like.

Yes, because heaven knows a corporation would never encourage a (false) belief that the product they're making today is somehow superior to the revised product they're being required to switch to for legitimate environmental reasons, just to save themselves the cost of switching...

Roughly: Plessy v. Ferguson was wrongly decided under the text, context, and history of the 14th Amendment. Brown v. Bd. of Education was correctly decided under the text, context, and history of the 14th Amendment. That's what I meant when I wrote:

The example of the Loving decision and the Civil Rights Movement supports my point. The people did express their desires in both cases by passing Constitutional Amendments (and laws) forbidding discrimination. It was an unelected Supreme Court that then reversed those desires by judicial activitism .... and the problem wasn't corrected until the Supreme Court reversed itself once again.

von,

I don't think this holds at all. The people were not aware they had prohibited discrimination with the 14th A, and there were no significant civil rights laws before 1957.

Plessy, as you of course know, had the Court upholding a segregation statute, not invalidating a civil rights law. Brown did invalidate segregation statutes, but enormously popular ones. To read your comment it sounds as if Plessy was the only thing standing in the way of popular sentiment for civil rights, and that the Court finally bowed to the people's will in Brown. Of course, that's the farthest thing from the truth.

In fact, I'd argue that your Plessy/Brown example works against you. You seem to be saying that the people outlawed discrimination with the 14th Amendment, but it took a long while for anyone to understand that. Finally, in 1954, the Court figured it out and explained it to everyone. OK, but before that the people obviously didn’t think they had outlawed discrimination, since it was widespread, and was even enacted into many state laws. It wasn’t until Brown that they realized that they had expressed “their desires in both cases by passing Constitutional Amendments (and laws) forbidding discrimination.”

Why doesn't the argument for judicial legalization of SSM fit this story? Brown had the Court enforcing the popular will expressed in 1868. The MA SJC enforced the popular will of the people of MA, expressed in 1780, that gays have the right to marry. Of course, nobody realized it in 1780. But the SJC finally did, and here we are. That seems to track your story of the 14th Amendment and “separate but equal” pretty well.

I don't know the back-stories of any of the long-term people here, but I've read and reread this paragraph of von's about gay marriage and I don't see anything particularly wrong with it.

Otoh, I don't see how any one particular branch of the government trumping another over a general issue is necessarily good or bad. If people in VT voted on a proposition that made miscegenation a crime, I'd like to have the courts there to trump the majority vote. If the courts rule on a very narrow interpretation of a law that no one would seriously argue was the original intent of the legislators, I'm glad that people can vote on a different law that would fix this problem.

Oh, I'll admit that I'd prefer in this circumstance that this decision to allow gay marriage was the result of a plebiscite; but that's not on any legalistic grounds. Merely that it would be nice if the majority of the citizenry did approve of gay marriage(or at least, did not disapprove of gay marriage.)

"The point here, whether or not you agree with it, is that SSM wasn't in the Constitution in the same way a right of the people to keep and bear arms was and is."

The point here is that the 14th Amendment absolutely was and is in the Constitution, and that is the amendment that applies and was cited in the Iowa decision.

Well, I left a comment on phosphates and enzymes and zeolites on Maguire's site and it got deleted.

Guess this subject of builder in detergent is just too controversial for the right to accept debate. Like phonics in education or something.

"Now, I don't have kids so I'm in no position to give authoritative advice on dealing with 2 year olds. But from what I see there are essentially two approaches. You can talk to them like very young adults and explain that their decisions have consequences. When they still insist on stamping their feet and yelling, you tell them to grow up and be quiet, and you end debate."

There's also option 3: give them whatever the hell they're asking for, because it's not worth making a scene over, and you want to pick your battles.

Occasionally that's what you need to do with a preschooler/toddler. However, as a general mode of operation, you're going to end up with a little tyrant.

Note the resemblance of Option 3 to the general strategy of the Dems in handling the GOP since the Reagan, and especially the post-Gingrich era.

The point here is that the 14th Amendment absolutely was and is in the Constitution, and that is the amendment that applies and was cited in the Iowa decision.

Again, in the Iowa case the 14th Amendment of the US Constitution may have provided some background, but I believe the key turning point was the very first Article and Section of the Iowa Constitution:

ARTICLE I.

BILL OF RIGHTS.

Rights of persons. SECTION 1. All men and women are, by nature, free and equal, and have certain inalienable rights--among which are those of enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining safety and happiness.

The court's decision is obviously somewhat more complicated (working out the details of "similarly situated people" and so forth), but as constitutions go, that's pretty clear.

Does this mean I can count on you to join my campaign for a marijuana brownie factory?

I'm down with that.

I'm looking forward to seeing "Phosphates now, phosphates forever!!" on the Republican party platform in 2012.

I'm sure it will be a winner.

So von, it sounds to me like you're saying this: it was the wrong way when the plaintiffs in Baker v. Vermont sued, and it was the wrong way when the Vermont Supreme Court mandated either equal marriage rights or civil unions, and it was the wrong way when the Vermont legislature passed the law granting civil unions under the gun. All those things were the wrong way; but the recent passage of equal marriage rights by the Vermont legislature was the right way -- even though it's very unlikely to have happened without the previous wrong-way events.

Three wrongs make a right?

Consumers always make informed choices and brand loyalty is ALWAYS based on effectiveness. It is the number one rule of Consumers.

Allow me to additionally bash the Voñata with I am certain that the actual cost of phosphate-related pollution has correctly been factored into the current market price. The market is really a smartket.

Suppose that some town creates a "Municipal Registry of Couples" and grants a small break on town income taxes to each individual named in the registry. Now, to get on the registry, you must (a) not be married and (b) register along with someone else who (i) is of the same sex, (ii) you maintain a legal primary residence with, (iii) you avow you are in a long-term, committed relationship with, and (iv) is not already on the registry.

Von, Brett, and others who are uncomfortable with judicial decisions granting gays the right to marry: do you think the town's policy is constitutional? Should heterosexuals sue the town over the ordinance? If the ordinance did end up in court, how should the courts decide?

Oh,please, Von. Do you really think there is ever going to be a serious criminal investigation into prosecutorial misconduct in cases involving underclass losers as opposed to United States Senators? As an appellate attorney, I find the notion laughable on its face. Down in the trenches, prosecutors will continue to do as they please, and appellate courts, even in putatively "liberal" jurisdictions, will overwhelmingly rubber stamp convictions. American criminal justice is a cesspool of moral corruption and intellectual dishonesty.

Von, I evidently misunderstood you, and I apologize for that: but really, I'm glad Bijan Parsia said it too -

This is simply a terrific week. Sweden's Parliament voted for same-sex marriage; Iowa and Vermont's change to equal marriage, back to back; and D.C.'s Council have voted to recognize same-sex marriages made legally elsewhere.

The chief safeguard against same-sex marriage being abolished once made illegal is length of time that couples have to wed legally, and number of couples who do.

(Even with Proposition 8: the anti-marriage supporters paid out millions, ran a vigorous attack campaign based entirely on lies, and the percentage of voters who supported them actually went down from the last time an anti-marriage amendment was voted on in California.)

Iowa's marriage decision will stand because the anti-marriage advocates do not stand a chance of changing it until November 2010.

That you feel less inclined, as a lawyer, to celebrate Iowa than you do Vermont, you have explained at length: but while accepting that you weren't being vicious, I still think it's petty. To people actually affected by the ban on same-sex marriages, both changes are plain good news.

@russell: {LOL!}

"Phosphates today, phosphates tomorrah, phosphates forevah!"

Hmm. I think there pretty clearly are right and wrong ways to get LGBT rights. For instance: if Barack Obama unilaterally proclaimed himself emperor for life, and then said that gay marriage was henceforth legal, that would be a Very Bad Way of legalizing gay marriage. Likewise, getting a legislature to enact it by kidnapping the kids of a majority of legislators and making voting for gay marriage a condition of their release.

What I don't understand is why judicial review is not "the right way" to secure rights that are guaranteed under the Constitution. I put it in this tendentious way to flag the fact that, yes, we need to have a debate about what is actually "in" the Constitution, and also that I believe that what can be derived from the Constitution using the best available argument and following all accepted principles of construction is, in fact, "in" it.

Personally, I think that the right to heterosexual and gay marriage is secured under the 9th amendment.

but while accepting that you weren't being vicious, I still think it's petty. To people actually affected by the ban on same-sex marriages, both changes are plain good news.

I think it's just kinda weird. Petty too, maybe, but I'm not sure I understand it well enough to say.

I mean, maybe I'm not "thinking outside the box" far enough, but it seems to me that if you support gay marriage, you basically do so on grounds that line up very well with Article 1, Section 1 of the Iowa constitution, and the arguments in the court's decision: Lacking a good reason not to, people ought to be treated equally. And denying LGBT people the right to marry is unfair and just generally makes no frigging sense.

You could have some other more personal reasons as well, but really it still boils down to the same thing.

And Von supports gay marriage. So what's the problem with Iowa?

I mean, it's not as if the legislature there was going to vote on a pro-marriage bill next week and the court just stole their thunder. Without this decision or one like it, gay Iowans were probably looking at years or decades of continued second class status. (Which, presumably he thinks is wrong.)

Plus, the wording of the decision is a good affirmation of equal protection, and an awesome smackdown of spurious anti same sex marriage arguments. (Again, all pluses, right?)

I gather he's being very picky about which court decisions are "good", but couldn't he go at least so far as to say something like, "And great news from Iowa as well (assuming the court's findings are sound)"?

To omit it or trash it (especially without even examining it) is...weird.

Does this mean I can count on you to join my campaign for a marijuana brownie factory?

Two birds; one stoned?

Personally, I think that the right to heterosexual and gay marriage is secured under the 9th amendment.

That would, at most, secure such rights against the federal gov't should it try to take them away. It has no application to the states, where most (all?) of these cases arise.

Since this is ostensibly an open thread (I'd suggest that open threads are best not started with a couple of controversial topics, as it tends to lead to, well, not much room for the openness), I'd like to say that it's articles like this that make me quite pessimistic about the notion that America can drastically change Afghanistan for the better.

jack: I mean, maybe I'm not "thinking outside the box" far enough, but it seems to me that if you support gay marriage, you basically do so on grounds that line up very well with Article 1, Section 1 of the Iowa constitution, and the arguments in the court's decision: Lacking a good reason not to, people ought to be treated equally. And denying LGBT people the right to marry is unfair and just generally makes no frigging sense.

Yeah, but von's a Republican. You've got to make allowances. ;-)

Also, I re-read by accident - I wish I could delete comments from the My Comments section of my blog's dashboard, so that they were still there but I didn't have to see them! - the comments from a creepy bloke who compared same-sex marriage to bestiality. You know, like Rick Warren. Which is probably where he got it from. Admittedly "Better than Rick Warren!" isn't a very high standard, but, such as it is, Von achieves it.

Actually, better than that: I'm quite happy to discuss the issues of changing marriage legislation with anyone, from homophobes who think marriage is all about interfertility upwards (and Von is obviously yards up from that) - but the evil-minded so-and-sos who think it's appropriate to compare same-sex marriage to having sex with animals aren't even down at the bottom, though they're as far down as anyone should go without special protective clothing.

Incidentally, did anyone see Rick Warren squirming like a squirmy thing as he claimed he'd never ever been against same-sex marriage... and the interviewer didn't play any clips of Warren's foul bloviatings against same-sex marriage? With BFF like that, does Obama need enemies?

The Vermont decision is very appreciated, but cannot be looked at in a vacuum. It was much easier to act that way because, ahem, judges already pressured the legislature to accept civil unions. New Hampshire, otoh, passed a civil union law without its supreme court forcing their hand.

Von, I don't understand how this is different from making leaded gasoline, cheaper products through by just dumping pollutants into the air, groundsoil, and rivers, cheaper products via child labor, cheap pajamas that are combustible, and all sorts of other things that there's consumer demand for, but which society/our government has done away with for the common good.

Let's confine the discussion to phosphates in detergent, Gary, which is the subject of the post.

As the title to my post obliquely suggested, phosphates are generally not considered to be a pollutant. They are a fertilizers. ("Triple super phosphate" isn't just a cool word; it is fertilizer.) As Gwangung points out, however, you can have too much of a good thing: too much phosphate entering still waters encourages too much plant growth which depletes oxygen supplies in the water. And that harms fish, which need oxegenated water.

But phosphates serve a very important role in detergent as well: in rough terms, they make detergents sudsier where water has a high mineral content (i.e., "hard water").* If I understand the science correctly, they also may serve various stabilizations functions to keep the detergent an emulsion.

There may be alternatives to phosphates, but none of them do each of these jobs as well as phosphates at the same price. Hence, phosphates in detergent.

As a final note, it's not like removing phosphates from detergents is the only option here. Many places do a better job of treating/removing phosphates from sewer water, which will have essentially the same end result as removing phosphates from detergent.


*This may be why some people report fantastic results with phosphate-free detergents and others are willing to drive considerable distances to get their phosphates. If your water is very soft, you may not notice a difference.

Oh,please, Von. Do you really think there is ever going to be a serious criminal investigation into prosecutorial misconduct in cases involving underclass losers as opposed to United States Senators? As an appellate attorney, I find the notion laughable on its face.

I'm thinking more of the incentives, and the effect on internal DOJ policies. AG Holder has already indicated substantial internal reviews; if that's coupled with a review by a special counsel, you are going to see much tougher internal standards and controls. In my (very) limited experience, internal standards and controls can have a huge effect on how a AUSA prosecutes a case.

I come back to that paragraph again.

I find it bugs me more, even granting various sorts of good will on von's part.

(By the by, I'm not being prescriptive here. von can write as he pleases. But that doesn't mean that the reactions -- even ones that misread the actual content of his prose -- are wrong, off base, or a problem with the reader.)

Here's an additional bit of at least tin-ear-ness: The link to Dreher, esp. with the echoing of Dreher's language.

Dreher is a staunch opponent of gay marriage. He is not convinced by any arguments --- his post is a strategy post about how to oppose gay marriage.

So, why link and echo his language? Why not link to people who intend to get married? It leaves a bad taste.

If linking to Dreher would further the cause then it might make sense to link to it. But I don't find it remotely plausible that it would. Indeed, nothing in Dreher's post suggests that he won't support overturning this law.

One interesting thing about reading Dreher's post it s that it really reveals the poverty of the "right way" talk. Dreher "endorses" the SCOTUS "imposing" gay marriage on "unwilling polities" so he can get a backlash sufficient to put in a constitutional amendment!

Er...Dreher seems to think that doing things the "right way" is for gay marriage advocates, not for opponents.

Plus, I think it's implausible that the implies strategic advice makes any sense: If Dreher really thought that a SCOTUS decision would meet his goals, why isn't he supporting it actively? E.g., by cash. Isn't it more plausible to think that he prefers the "right way" because it substantially advances his anti-gay position. In other words, I believe Dreher is being hugely disingenuous. Inertia is a powerful force. I'd rather defend existing gay marriage everywhere then have to attack gay marriage everywhere. I'd much rather have to defend against a movement trying to amend the US constitution to ban gay marriage.

Without a SCOTUS decision, gay marriage will plausibly take years to enact across the country. Thus, the "right way" means denying people rights until, lets say, 2024. Real people will suffer real harm. With a SCOTUS decision, the changes of an amendment overturning it are slim to none and, in any case, much easier to defend against. Since the long term trend is toward justice, I don't see the harm in speeding it up.

If we put aside instrumentalist arguments (which seem to be exceedingly week, e.g., in the light of Roe; that is, I would bet that we currently have a better overall outcome with respect to reproductive rights than we would have had without Roe; that is, more women has more reproductive freedom in our universe than in the likely alternatives), then we have a bit of a value fight: Do we prefer some activisting by judges or prefer people being denied rights for years?

Well, I prefer some activisting. That seems the extremely venial sin.

So, stepping back, I have to say that Vermont did not "grant" gay marriage in the right way. The right way would have been never to have denied it. And to think that this or that wrong way is the "right" way is to miss the point in a deep way. To appropriate the term "right way" to describe a strategy that denies people's rights for an arbitrary period of time because because, tendentiously, it is procedurally nice is exactly to be either unprincipled, or to have wrong principles.

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