Tuesday, October 21, 2014

 

Al Mohler Tries to Think It Through


... and winds up with a headache.

Mohler, who I've described as a marginally saner wingnut, because he has held his nose and realized that the fight against same sex marriage is over, can't understand how Ted Olsen can hold what, to Mohler and someone named Mona Charen, are contradictory positions:
... I want to draw attention to an important article by Mona Charen of the Ethics and Public Policy Center that ran in several newspapers across the country, including the Sunday edition of the Birmingham News. Charen writes about the appearance on Fox News Sunday, back on October 12, of lawyer Ted Olson, one of the two lawyers in the appeal of the California Proposition 8 case.

Appearing there on Fox News Sunday, Ted Olson offered his argument for the legalization of same-sex marriage and his justification for the Supreme Court taking its action. But, as Charen notes, Ted Olson made a fundamentally contradictory argument. She writes,

"Appearing on set Fox News Sunday to discuss the Supreme Court's decision to let stand a number of judicial rulings overturning the acts of legislators and/or voters in 16 states, famed advocate Ted Olson offered the kind of reasoning that, in his former incarnation as a conservative, he would have scorned. 'Over 59 percent of Americans now believe that marriage equality should be the law of the land,' he proclaimed. Seconds later he seemed to contradict himself: "We have a Constitution and Bill of Rights precisely because we want protections from majority rule."

Like Mona Charen, did you hear the contradiction? ...
No.
"Which is it, a fundamental right that ought to be recognized without regard to majority views, or a popular view that deserves to be enshrined in the Constitution by the courts just because it's polling well? [Charen then writes,] If it's true that large majorities have changed their minds on same-sex marriage, why not leave the matter to state legislatures and voters rather than undemocratically taking the question out of their hands?"
What Mohler and Charen are missing is that, when these various SSM bans were passed, a (then benighted or mislead) majority wanted to punish gays by denying them their rights under our Constitution. LGBT people deserved then and deserve now the protection from that amimus that is afforded by our Constitution. They should not have to wait for the often prolonged political process nor depend on the local social milieu of any one state to secure their rights.

The point of mentioning that over 59 percent of Americans now believe that marriage equality should be the law of the land is to establish that, no matter how quickly the tide of opinion has turned, it is now widely recognized that it is a basic right and, therefore, deserves heightened protection under our laws.

The suggestion that gays resort to the local political system in, say, Mississippi or Alabama, to secure their rights is akin to claiming that blacks should have done the same to end Jim Crow laws.

Comments:
I'm sure you've seen this by now: http://xkcd.com/1431/, showing that in the case of interracial marriage, public opinion lagged the law by some 30 years, whereas in the SSM case, it's the other way round (though not by as wide a margin).

The wingnuts, of course, will appeal to whichever seems more likely to get them what they want, while insisting that they're standing on principle.
 
We don't have protection against minority rules?
As in protections, such as they are, against gerrymandering?
 
Steve:

Yeah, I saw it. In an ideal world, public opinion shouldn't be the determiming factor in what rights are protected under the Constitution but it often has an effect. The fact that a majority of states allowed interracial marriage certainly had an effect on SCOTUS's decision in Loving and public sentiment on SSM will have an effect on the ultimate outcome here. That still doesn't mean that the right isn't one protected under our Constitution.

Anonymous:

Usually it takes a majority to gerrymand.
 
As to gerrymandering, all it takes is a majority of the body which is doing it. Which can be different from the body being gerrymandered. But otherwise, this can take place because of historical changes, or because it was set up that way from the beginning. I am thinking of "rotten boroughs", and the US Senate. (I have no idea how the rotten boroughs arose.)

One could argue that such-and-such is the wish of the majority of people, but of a minority of the legislature; and as such a court in ruling for the minority of legislators is also ruling what the majority of the population wants. No contradiction there.
 
Is "someone named Mona Charen" for real? She was Fox News material long before Fox News existed.

I remember back in the 1980s she had a similar problem understanding majorities. She was totally surprised to find out that the majority of Americans thought that abortions were wrong. So what is all the fuss; Let's ban abortions. What she did not understand was that there was a different, overlapping majority who thought it was none of their business making that decision for everybody else.
 
Ferrous:

Here's her bio from the Ethics and Public Policy Center.

http://eppc.org/author/mona_charen/

She served as Nancy Reagan’s speechwriter, so she doubtless predates Faux News.
 
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