Wednesday, May 21, 2008

Well, that was entirely predictable

Virtually unintelligible, but entirely predictable. Spot knew that Katie could not let the California pro-gay-marriage decision of last week pass without hissing and spitting like a cat cornered by a ten-year old with a water pistol. The hed for Katie's column is California ruling hijacks the middle ground on marriage. Here are the opening paragraphs:

The debate over same-sex marriage has roiled for over a decade. On one side are people who believe that marriage is properly limited to one man and one woman. On the other are those who argue that lack of access to marriage is unfair to gay couples, because it deprives them of benefits that flow from the marriage certificate, such as survivor rights, hospital visitation and insurance coverage.

In recent years, a sort of middle ground has developed. Called civil unions or domestic partnerships, this new arrangement is often promoted as a way to preserve traditional marriage while bestowing many of its government benefits on gays.

The major Democratic presidential candidates have embraced civil unions as a compromise on same-sex marriage. Some Minnesotans promote the approach as well.

Wow, Spot, it sounds like Katie is in favor of domestic partnerships for gays! I wouldn't have expected her to be that liberal.

Silly grasshopper. You really must stop your habit of only reading the opening paragraphs of articles and columns. That's especially important for Katie, because what she is saying, or trying to say anyway, could be strewn anywhere along the path in the column. If you aren't careful, you could trip over the exposed root of an idea as you're walking along.

Well, then what is Katie's, er, point?

Katie thinks that Californians were too nice to gays, and now they have that fact to blame for the California Supreme Court decision legalizing gay marriage. You see, California did have a domestic partner statute that gave gay couples the opportunity:

to obtain virtually all of the legal benefits, privileges, responsibilities, and duties that California law affords to and imposes upon married couples.

Katie writes:

The court put no stock in the state's argument that same-sex and opposite-sex couples already have equivalent rights under California law. In fact, the majority found that the Legislature's decision to treat gay relationships as worthy of marriage-like benefits actually bolstered plaintiffs' argument that domestic partnerships are discriminatory. Since the Legislature has treated same-sex and opposite-sex couples equally, said the court, withholding the marriage label from gays is a "mark of second-class citizenship."

Darn those gays for thinking that the "marriage label" is important! But Katie obviously thinks it is important, too.

These are old grounds for Fourteenth Amendment equal protection jurisprudence. We've been over it again and again. We'll look at just one example.

One of the most important aspects of Jim Crow was segregated schools. White Southerners claimed that the black schools were merely separate, but that they were equal. They were manifestly not equal, but the Supreme Court of the United States bought the argument in Plessy v. Ferguson in 1896 and held that "separate but equal" did not violate constitutional equal protection. It was horse puckey, of course.

Fast forward to 1954 to a case where the plaintiffs were assisted by the NAACP and its lawyer, Thurgood Marshall. This case is one of the principal reasons that Marshall wound up sitting on the Supreme Court, boys and girls.

In the case of Brown_v._Board_of_Education, the Supreme Court ruled that "separate but equal" was inherently unequal. Not only were the black schools inferior in quality, but they created a second-class citizenship.

Now if we apply Katie's logic to the school desegregation cases, it means that the white Southerners' big mistake was making any effort to educate blacks at all. Why, if blacks had just been left to languish in complete ignorance, they would have had no claim at all! And then the "activist judges" would have left well enough alone.

Which bring Spot to the "activist judges" canard. To a right winger like Katie, an activist judge is one who rules in a way you don't like, especially if the judge find that somebody else is also entitled to a right that you currently enjoy. Without a number of second class citizens, it is not nearly as much fun to be a first class citizen.

One of the ways to mount the charge of activist judges, as Katie does today, is to say that they "[disregard] the will of the people." Well, some of the people, anyway. It was certainly true in Brown v. Board of Education.

In her column today, we have Katie starring as a member of the Topeka, Kansas school board in 1954.

One more teensy thing, boys and girls. Katie argues that the California Supreme Court ignored the will of the people by upsetting the separate domestic partner scheme adopted by the California Legislature. All right, Katie, if we adopt the overturning of an enacted law as judicial activism, who were the most activist Supreme Court Justices, at least as of 2005? Thomas, Kennedy, Scalia, Rehnquist, and O'Connor. Conservatives all.

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