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November 05, 2004


Fred Vincy

Thank you for a useful history lesson. We have made progress and I suspect that you are right that we will continue to make progress. However, as we have learned from our nation's struggle with racism against African Americans, we can make progress and, at the same time, see the right continue to use hatred as a tool to get votes.

I hope this is not too personal, but four is a lot of times to get married. Is that something that you've ever written about?


Thanks for that.


I'm so glad to see that you have the faith. I kind of wrote about the opposite side today, that people who voted against gay marriage had no faith in their beliefs. BTW, I just wanted to let you know it's been a real pleasure discovering your site. I just wished I was exposed to open minded Christians like you when I was involved in the church.

What Now?

Thanks--this was a real mood-lifter in a week in which my mood definitely needs lifting.


I know that it is hard to see the voter turnout from a positive light in the darkness of defeat. But I'm going to stand by my belief that it is a good thing for everyone. Americans are ready for the discussion; they are poised for debate. Yes, a lot of people are hard headed, aren't we all when we think that our values are being challenged...we should be because that is exactly what is happening! It has to happen for change to continue. By showing up on Election Day, Americans have shown that they are ready to be engaged. You can’t start teaching until a student shows up, otherwise your just talking to yourself. As a Prof myself, I find it discouraging when students don’t show up to class. Show up late, show up tired, show up with the wrong answers, but show up and have something to say…give me something to work with. America showed up on Nov 2. I for one, find that a place to start.

La Lubu

Amen, blackkoffeeblues. I think more folks are interested in dialogue now, rather than the same-old same-old preaching to the choir. And I think more folks are ready to get down to business. Hope so, anyway.


I totally agree with La Lubu and Blackcoffeeblues (love the name btw, from the song right?), i'm glad that there is now room for dialogue. I don't mean to be a sad sack and cast a gloomy glow on the positive turn of our thoughts and conversations, but didn't California just pass a law (was it last year?) prohibiting gay marriage? I distinctly remember it being on the ballot, I just can't remember which election. Anyway, my point is, is that we're all miffed about those 11 states, but we are one of those states and the sad thing is we've been one for over a year now. Even sadder is that I had forgotten all about it, until a gay friend reminded me "uh, we voted against that over a year ago". and I was like "oh yeah, you're right, oopsie".

Joy Paul

Thanks for the history lesson. I do think that gays have made much progress in recent years. Your historical review helps reinforce that. We cannot expect dramatic change to come without a struggle.

Some may be surprised that exit polls showed that 20% of gays/lesbians who voted this year voted for Bush. (I did not vote, but cheered his victory for a variety of reasons.)

I just want to caution everyone, that Bush's victory was not solely because of the "anti'gay" vote. To think that that issue was the main reason for his victory lends itself to tunnel vision. We might start with 9/11 as one of the many issues that framed the final outcome of this election.

I know where I stand on gay rights. I cheered when the Supreme Court overturned Texas (my current residence) law on making gay activity illegal. I cheered when the Massachusetts Supreme Court declared that gays should be allowed to marry.

But I am not a one issue person. Just like many of you conservative Christians didn't approve of Bush's conservative Christian values, I didn't approve of Kerry's liberal views on economics and national security. Apperently there are many people who had to wrestle this year with their vote.

Contrary to what many seem to be saying on the blogs these days--that is not entirely bad.


Kelly, that is correct. California voters easily passed Proposition 22 in the March, 2000 primary. Between that, Oregon and Hawaii, it's not a red-state/blue-state thing. For better or for worse, Americans don't want gay marriage, and they really don't want it imposed by a court.

Lynn Gazis-Sax

On the other hand, California does have expanded, civil union-like domestic partnerships, without significant objection. It looks as if, for better or worse, having one state after another institute civil unions (probably with arrangements gradually being made to recognize each other's civil unions) is the way we are heading.

By the way, I remember the Briggs Initiative - that was right after I got to California for college, and was the very first California election in which I was involved (barely too young to vote, but not too young to campaign).


Yeah, well Americans didn't want intergrated schools imposed by a court either. I don't see the point of that argument.


They certainly didn't want the abolition of anti-miscegenation laws imposed by a court, either.


Amanda, if you don't see the point now, when will you? After all 50 states and D.C. pass mini-DOMA laws of their own? Bypassing public debate and courts to make crap up is not only undemocratic and immoral, it's also extremely ineffective.

Besides, let's not pretend that courts have traditionally been champions of civil rights. One Supreme Court gave us Dred Scott, forcing the other two branches of the government to fight an extremely bloody civil war. Congress responded by enacting not one but three constitutional amendments aimed at integrating the newly formed slaves into society. The courts' contribution? To gut the 14th Amendment by nullifying the P&I clause and inventing the now-infamous "separate but equal" ruse. It was nice of them to finally start enforcing the 14th Amendment almost a century later, but even that doesn't make the institution a champion of civil rights. It makes unelected judges guilty of maintaining school segregation and anti-miscegenation laws for almost a century after the democratically elected government had acted to end them. Even most of the post-1960s cases where courts have generally advanced the civil rights cause, they have done so by implementing relatively recent legislation, e.g., the Civil Rights Act. They didn't make their rules out of whole cloth, as the Masschusetts SJC did.


Baehr v. Lewin was not made out of whole cloth, yet "state's-rights" conservatives called it judicial activism. Funny how the same people who scream about the Feds suddenly get all Congress-huggy when the "right" in question concerns sex or drugs.


Strict constructionists are every bit as "activist" as the "judicial activists." The difference is that the SC's are conservative while the JA's are liberal. That, plus the Right has been extremely effective in the use of language to advance its agenda. Orwellian, even.


Mythago, Baehr v. Lewin is a prime example of judicial activism if there ever was. It takes a lot of chutzpah to pretend that a ban on gay marriage is a form of sex-based discrimination. Which sex is it even supposed to discriminate against? Men, or women?

In any event, it didn't take long for liberal Hawaii voters to undo that screwball decision, did it? That's hardly the response one would expect for a sensible court ruling that properly applied existing law and offended only the far right, as you suggest.

Zuzu, your claim that strict constructionists are as "activist" as those who make crap up is almost too dumb to respond to, but I'll try anyway since I'm such a nice guy. The difference between strict constructionism and judicial activism is actually quite simple. One group endeavors to apply the Constitution or other applicable law as written, while the other twists the law any which way it can to obtain a desired political result. Confronted with the fact that he and the lawmakers will not always see eye to eye, a good strict constructionist will invariably have to make some rulings he considers unjust. A judicial activist, by contrast, never has that problem; if you and the law agree, twist the law to make it agree with you. If the legislature responds with a "no, you dummy" amendment, no problem; just torture a constitutional provision instead.

This distinction has nothing to do with being politically liberal vs. conservative, except for the historical accident that in recent decades, judicially activist shenanigans have been more popular among politically liberal judges than among politically conservative ones. It hasn't always been that way, it just happens to be that way now. For example, my copy of the Constitution doesn't say a word about abortion, and I'll bet yours doesn't, either. Notwithstanding this, six of today's nine Supreme Court Justices agree that some emanations and penumbras guarantee an individual right to abortion. On the flip side, zero Justices believe that the Constitution guarantees an individual right not to be aborted. Ditto for gay marriage, where three state courts have made up a pseudo-constitutional "right" to gay marriage, while none have, or likely ever will, invent a constitutional prohibition of the same (although voters are quickly moving to do that for them).


Zuzu, your claim that strict constructionists are as "activist" as those who make crap up is almost too dumb to respond to, but I'll try anyway since I'm such a nice guy.

"Nice." That's what the kids are calling it these days? Out of respect for Hugo's space, I will refrain from suggesting where you might think of locating your "I'm a nice guy."

The difference between strict constructionism and judicial activism is actually quite simple. One group endeavors to apply the Constitution or other applicable law as written, while the other twists the law any which way it can to obtain a desired political result.

The Constitution as written is open for interpretation. It was designed that way. It's a framework. What those who would purport to "strictly construe" it in order to restrict liberties seem to forget -- or wilfully ignore -- is that those who drafted it were steeped in Enlightenment principles. They believed that man had certain inalienable rights not to be proscribed by government or by the tyrrany of the majority. The moves by "judicial activists" to expand the freedoms of Americans would seem to be more in line with those Enlightenment principles than would the moves of strict constructionists to limit those freedoms.

Do I think that some of the Court's interpretations have been a stretch? Absolutely. But guess what? In common law traditions such as ours, judges make law. They strike down or uphold statutes and prescribe the limits of certain practices. They act as check and balance to the other branches of government; those other branches are free to overrule decisions by statute or enact other laws to achieve the same purposes but without the objectionable language or content. And judges make law whether you call them activist or strict constructionist. They would frankly serve no purpose if all they did was ratify the acts of the other two branches of government and make decisions based on what might possibly have been in the Framers' minds back in the 18th Century.

Col Steve

Zuzu - You make some good points, but one drafter of those principles had some interesting observations looking back on the process.

Thomas Jefferson wrote:

The principal [leaders of the political opposition] have retreated into the judiciary as a stronghold, the tenure of which renders it difficult to dislodge them

and later added,

The original error [was in] establishing a judiciary independent of the nation, and which, from the citadel of the law, can turn its guns on those they were meant to defend, and control and fashion their proceedings to its own will."

Checks and balances may be two sides of the same coin, but often depends on whether you win or lose the toss.


I reread your post 3 times and I still don't see your explanation for why the majority has a right to vote on the rights of the minority. Again, if this is so, then we can take a vote to ban interracial marriage again, no? And it's likely that such a ban would pass, whether we like to admit it or not. People's willingness to take away the rights of their neighbors knows no bounds sometimes.


Judicial activism may expand the liberty of judges, but it doesn't do a damned thing for anyone else's. A strict constructionist won't invent new rights, but can be trusted to enforce the ones already written into our Constitution, or any other applicable law. A judicial activist cannot be so trusted; all he'll protect is whatever rights he personally thinks you ought to have. How else do we end up with a near-absolute "right" to kill unborn fetuses, yet no enforceable right to own a gun for self-defense? This has nothing to do with the Enlightenment or the common law, and everything to do with the divine right of kings.


How else do we end up with a near-absolute "right" to kill unborn fetuses, yet no enforceable right to own a gun for self-defense?

I'm not sure where you live, but in my America, there is no absolute right to terminate pregnancies, and as for gun rights, when you can buy handguns at Kmart and gun shows and maybe only have to undergo a cursory background check, I don't see how that translates to "no enforceable right to own a gun for self-defense."

Let's just dispense with the notion that Roe v. Wade established unlimited right to abortion. What it did was create a balancing test weighing the state's interest against the woman's right to control her own body. You may also recall that as the pregnancy progresses, the balance shifts.

And where, anywhere in this country, are guns for personal protection completely banned? Unless you require an assault weapon to protect yourself (and even then, that ban's been overturned). No right, even those explicitly granted by the Constitution, is absolute. Free speech is subject to reasonable time, place and manner restrictions so that it does not impinge on the rights of others or a compelling state interest. Why should gun ownership be any different? And what's so onerous about getting a license or registering your weapon, or being subjected to a background check to make sure that you're not likely to use the gun to commit crimes? It doesn't change the basic nature of the right -- you still have your gun, but given that it's dangerous, the state has an interest in making sure you aren't going to use it for some purpose other than self-defense or hunting, and, if you do, that it can be traced to you.


Roe v. Wade didn't establish a right to "destroy fetuses", a handy little phrase that makes it sound like they are growing in a cabbage patch and someone went in there with a sledgehammer. It established a basic right to private consultation with your doctor.

By the definition laid out by our Founding Fathers, rights are not invented. They are god-given or natural or whatever. Judicial "activists", once known as judges, are simply ruling that people should be allowed to enjoy the rights they already have.


Zuzu, I didn't say Roe v. Wade established an absolute right to abortion, I said it established a near-absolute right. Expressio unius exclusio alterius est. By itself, Roe pretty well guarantees abortion on demand for the first trimester, but subsequent cases have expanded it further to strike down Nebraska's partial-birth abortion ban.

As to guns, "assault weapon" is a misnomer. A more accurate term would be "ugly gun," because an ugly appearance really is the only thing that separates most "assault" weapons from other, more commonly own firearms. The AW ban is to the Second Amendment as a ban on criticizing the government on the second Tuesday of every month would be to the First - on one level, a relatively minor infringement; on another, an ominous sign that Congress can regulate on a whim. And the ban wasn't overturned. The federal one was allowed to expire, but the seven state bans, including California's, remain despite having hand no measurable impact on crime whatsoever.

I don't know what K-Mart you shop at, but I've never seen a handgun for sale at any K-Mart. Wal-Mart used to carry them, but hasn't for years. I do see them at gun shows, of course, but I'm not sure what the significance of that is, seeing as guns sold at gun shows are regulated exactly the same way as guns sold anywhere else. But those aren't the issues that prompted my earlier post, anyway. I can live with background checks, registration, nondiscretionary "shall-issue" licenses to carry concealed (CA is "may issue," which generally translates into "won't issue"), waiting periods, and the like. I don't like those restrictions, mind you, but I can live with them. What I can't accept is the ACLU's position, shared by many liberal judges, that the ACLU protects no individual right at all, only a meaningless "collective" right that is enforceable by no one against no one. Think I'm making that up? Read the ACLU's own take on the matter. Then read Silveira v. Lockyer, authored by that icon of the liberal left, Stephen Reinhardt.

As to where guns for personal protection are banned, try New York, Chicago, the District of Columbia and suburbs for starters. San Francisco tried to join the club in the early 1980s, but their ordinance was struck down as an obvious violation of California's firearm preemption law; it wasn't a Second Amendment case.


Is it just me, or does the argument about Constitutional law and "strict constructionism" remind others about the arguments about Biblical literalism? Right down to the dickering about or ignoring of slavery citations?

Assault weapons are those with fully or semi-automatic mechanisms and high-capacity magazines. They are NOT the .22 target-shooting rifle I used as a kid, nor are they standard service revolvers. Come on Xrlq, what I want to hear from you is not the namby pamby defense fo assault weapons as ugly guns that should be ownable by members of the general public. Let's hear the 2nd amendment case for private nuclear weapons, or for the slightly less affluent, private fertilizer bombs, or if that makes you blanche, how about privately owned rocket-propelled grenades.


Oh, and I do think that Hugo is right - it takes about one hundred years for civil rights to be extended to a new group.

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