Morons Against Gay Marriage
No, I’m not saying everyone who opposes gay marriage is a moron. I oppose gay marriage myself, and I like to think I’m a non-moron. Liberty Counsel, however, are making us traditionalists look like idiots. Get a load of the lawsuit they’ve just brought alleging that gay marriages in Massachusetts violate the Article IV, Sec. 4, of the U.S. Constitution. “Liberty Counsel” non-explains their suit (which, oddly enough, is unrelated to liberty) thusly:
The lawsuit argues that the Court’s decision violates Article 4, Section 4, of the United States Constitution, which is called the Guarantee Clause. That Clause [sic] guarantees that every State [sic] in the Union will have a Republican [sic] Form [sic] of Government [sic].
Oh, wait, I think I get it. Either the first draft of their brief was written by a German immigrant who hasn’t yet mastered the rules of capitalization in English, or his caps key was stuck. Either way, an editor mistook the reference to a “republican” government for one to a Republican government. Most Republicans (though not all) oppose gay marriage, and all Republican-controlled governments do. Therefore, any government that supports gay marriage must be un-Republican, and therefore, unconstitutional. Is that it? No? Oh, wait, there’s more:
The Guarantee Clause places the federal government in the position of a referee over the States [sic] to ensure that the States [sic] follow a Republican [sic] form of government. The Guarantee Clause was a requirement for States [sic] to be admitted into the Union.
Silly me, I could have sworn that Massachusetts was a state before the U.S. Constitution was ratified. I guess this chart must be wrong. Oh well.
The Clause is violated in this case because the Massachusetts Supreme Court usurped the power of the Legislature and the Governor in hearing the Goodridge case and in redefining marriage. The Massachusetts Constitution clearly gives the authority to hear all marriage cases to the Governor and the Legislature, not the Courts [sic].
In other words, any time a state court screws up and misinterprets a state law, that state ceases to be a democratic republic and becomes another dictatorship the federal government must liberate. Maybe the U.S. itself isn’t a republic anymore, either; Lord knows we’ve had plenty of federal cases that were just as screwy, and invoved just as much of a usurpation of Congress’s powers. Only for some reason I don’t quite get, a brutal dictatorship like the State of Massachusetts – unlike, say, Saddam’s Iraq – can be liberated by a simple order of the courts, with no need for the military to intervene. O-kay.
The pseudo-journalists at FoxNews quote attorney Shari Levitan as describing this Liberty Counsel’s challenge as a “hail Mary pass.” That’s putting it lightly. Hail Marys sometimes succeed.
May 10th, 2004 at 5:50 pm
Small point, but the orignial Constitution itself capitalizes almost all nouns — including the ones you found so oddly capitalized.
May 10th, 2004 at 6:26 pm
What are the odds that this is just some Democratic Party “fellow-traveller” prank?
May 10th, 2004 at 6:42 pm
Nit Picker: yes, I know. That doesn’t make it any less weird for these guys to use irregular caps, except when quoting the Constitution directly.
51st: I hadn’t thought of that, but it would make sense.
May 11th, 2004 at 6:00 am
I have always wondered how much of the gay marriage debate is a matter of certain people not wanting to be associated with the “wrong people” who are most vocal in being against gay marriage. For a long time after Roe v WAde, good, socially correct people did not want to be associated with the “trailer park trash/old ladies in tennis shoes/shyster preachers” who were shoving signs of aborted babies in people’s faces. Now, good, socially correct peoplep are more inclined to be ANTI-abortion.
I have yet to see any indication that the gay marriage debate will be any different. Say what you will about this attempt at legal overthrow, at least the anti-gay marriage side wants to play to win.
May 11th, 2004 at 6:40 am
The Supremes didn’t go for this when the Nevada SC ordered the Legislature to raise taxes in contravention of the state’s 2/3rds vote constitutional requirement. Not likely they’ll go for this comparatively pedestrian usurpation argument.
May 11th, 2004 at 7:11 am
These come up every time a court does something that someone doesn’t like.
There was one after the Nevada Supreme Court voided that state’s constitutional requirement that a supermajorityvote is necessary to raise taxes.
May 11th, 2004 at 10:10 am
Let’s agree that this suit has virtually no probablity of succes and that the Republican form of government clause, like the Privileges and Immunity clause of the fourteenth amendment has been essentially moribund. All that said, why is this suit wrong. I take it that if a junta took over a state, the republican form of government might be invoked to justify federal intervention. An analogy could be made where courts are usurping traditional democratic procedures, albeit the real remedy is at the level of the state. On the other hand, last time I checked the constitution was fairly silent about penumbras and emanations and separation of church and state but those inventions don’t seem to offend very many people today.
May 11th, 2004 at 11:28 am
I see the P&I clause differently. In my view, the Slaughterhouse Cases were decided incorrectly, and should be overruled. That won’t happen unless/until someone brings a challenge under the P&I clause and gives the court an opportunity to revisit its past decisions. By contrast, the “republican guarantee” challenges we’ve seen to this decision, Nevada’s, ballot initiatives generally, and the like strike me as nothing but petty, sore loser politics. Yes, the same can (and should) be said of the idiotic decision that prompted this challenge (and Nevada’s), but two wrongs don’t make a right, unless you want to make the U.S. Supreme Court the final arbiter not only of federal law but of state law as well. I like the federalist system better than I like the idea of getting my way in a state I haven’t even visited in more than a decade. Plus, as you’ve hinted with your reference to penumbras and emanations, it’s not as though we can trust the federal Supreme Court can be trusted not to screw up the law, either. Who do we appeal to then? The UN or the World Court?
One exception: IMO, the U.S. Supreme Court was right to hear Bush v. Gore, but should have ruled in Bush’s favor under Article II, Section 1, which requires each state to choose its electors “in such Manner as the Legislature thereof may direct.” That provision specifically confers the power on the legislature, not on the state as a whole. Thus, I see no reason why the federal courts should be any less competent than the state courts to determine what manner the legislature has or hasn’t directed. The same argument may hold for the Lautenberg switch, depending on how much of Art. I Sec. 4 survived the 17th Amendment.
As to anything else which the Constitution simply leaves to “the states,” any internal squabbling over the separation of powers should be a matter internal to the state; it has nothing to do with the federal Constitution.